United States v. Santiago-Rivera, 1st Cir. (2014)

United States Court of Appeals
For the First Circuit

No. 13-1228
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN FELIX SANTIAGO-RIVERA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Torruella, Selya and Thompson,
Circuit Judges.
Hctor E. Guzmn, Jr., Federal Public Defender, Hctor L.

Ramos-Vega, Assistant Federal Public Defender, Supervisor, Appeals
Division, and Patricia A. Garrity, Assistant Federal Public
Defender, on brief for appellant.
Rosa Emilia Rodrguez-Vlez, United States Attorney, Nelson
Prez-Sosa, Chief, Appellate Division, and John A. Mathews II,
Assistant United States Attorney, on brief for appellee.
February 28, 2014
SELYA,
Circuit
Judge.
Following
his
guilty
plea,
defendant-appellant Juan Felix Santiago-Rivera was sentenced to a

term of immurement above the top of the applicable guideline
sentencing range (GSR).
The defendant appeals, arguing that the
district court failed to make an individualized assessment of his

case and, in the bargain, imposed a substantively unreasonable
sentence.
After careful consideration, we affirm.1

The relevant facts are easily assembled.
On March 15,
2012, a police officer saw the defendant walking down a road in

Morovis, Puerto Rico.
The defendant fit the description of a
suspect in an aborted carjacking that had been attempted earlier

that day.
The officer drew his sidearm and ordered the defendant
to halt.
In response, the defendant shot the officer, seriously
wounding him.
He then struck the officer in the head with his
firearm, stole the officer's gun, and fled in the officer's patrol
car.
In
due
season,
federal
indictment against the defendant.
grand
jury
handed
up
an
Count 1 charged carjacking
resulting in serious bodily injury, see 18 U.S.C. 2119(2); count

2 charged use of a firearm during and in relation to a crime of
The defendant's counsel below, Joannie Plaza-Martinez,

piggy-backed on the defendant's notice of appeal to challenge a
sanction that the district court had levied against her. Because
the sanctions order raises completely separate issues, we will
decide Plaza-Martinez's claim of error in a separate and subsequent
opinion.
-2-
violence,
see
id.
924(c)(1)(A)(iii);
and
count
charged
possession of a stolen firearm, see id. 922(j), 924(a)(2).

Count 1 carried a maximum incarcerative term of 25 years, count 2
carried a mandatory minimum and consecutive term of 10 years, and
count 3 carried a maximum term of 10 years.
After some preliminary skirmishing, the defendant pleaded
guilty
to
all
agreement.
three
The
counts.
probation
There
office
was
no
concomitant
prepared
plea
presentence
investigation report (PSI Report), which grouped counts 1 and 3

because they involved the same victim and were connected by a
common criminal objective.
See USSG 3D1.2.
For the grouped
counts, the probation officer recommended an adjusted offense level

of 30 and a criminal history category of III.
These calculations
yielded a GSR of 121 to 151 months on the grouped counts.
As to
count 2, the PSI Report noted that the statutory mandatory minimum
sentence was 120 months and that any sentence on count 2 had to run
consecutive to whatever sentence was imposed on the grouped counts.
The PSI Report identified certain factors that might
warrant an upward variance. Those factors included the seriousness
of the offenses of conviction, the defendant's notorious history of
criminal conduct, and his commission of violent acts for which he
had not been charged. The probation officer also noted that statecourt charges, unrelated to the offenses of conviction, were
pending against the defendant for attempted murder and illegal use
-3-
of a firearm.
Finally, the PSI Report contained a victim impact
statement describing the considerable physical, psychological,

familial, and financial devastation wrought by the defendant's
attack.
At the disposition hearing, the district court accepted
the guideline calculations limned in the PSI Report.
Defense
counsel argued for a downward variance a 15-year sentence.
The
attorney emphasized that the defendant had endured a troubled

childhood and asserted that he suffered from diminished mental
capacity.
The prosecutor rejoined that the victim had been forced
to "beg[] for his life" after the defendant put a gun to his head,
declared that the victim was "lucky" to be alive, and asked for a
sentence of life imprisonment.
The prosecutor argued that the
defendant was "a person who has no respect for the law" and "no
respect for the life of others."
After hearing the lawyers' importunings and giving the
defendant an opportunity to allocute, the district court remarked
the high incidence of violent crime in Puerto Rico (including
carjackings resulting in serious bodily harm and offenses involving
"[f]irearms like the one [that the defendant] possessed").
The
court went on to say that it was "duty-bound to consider Puerto

Rico's high firearms and violent crime rate" in shaping the
defendant's sentence.
-4-
When all was said and done, the court varied upward and
imposed an incarcerative sentence of 240 months with respect to the
grouped counts,2 to be followed by a consecutive 120-month term of
immurement (the statutory mandatory minimum) on count 2.
This
timely appeal ensued.

Before us, the defendant contends that his sentence is
both procedurally flawed and substantively unreasonable. These two
contentions pivot on a common theme: that the district court
focused too little on the potentially mitigating circumstances of
his upbringing and mental capacity and too much on the high
incidence of crime in the community.
Federal criminal sentences imposed under the advisory
guidelines regime are reviewed for abuse of discretion.
See Gall
v. United States, 552 U.S. 38, 51 (2007); United States v. Martin,

520 F.3d 87, 92 (1st Cir. 2008).
district
court's
findings
of
Within this rubric, we assay the

fact
for
clear
error
and
interpretation and application of the guidelines de novo.

United States v. Walker, 665 F.3d 212, 232 (1st Cir. 2011).
its
See
If no
procedural error emerges, the district court's ultimate choice of

a sentence is evaluated for abuse of discretion simpliciter.
Id.
To be precise, this sentence was imposed only on count 1, as

the maximum sentence available under count 3 is 120 months. See 18
U.S.C. 924(a)(2).
A concurrent sentence of that length was
imposed on count 3.
-5-
We start with the defendant's claim that the district

court gave too short shrift to relevant sentencing factors while at
the same time giving too much heft to peripheral factors.
The
general mine-run of sentencing factors is delineated in 18 U.S.C.

3553.
It is common ground that a sentencing court may commit
procedural error by "failing to consider the 3553(a) factors."

Gall, 552 U.S. at 51.
But the weighing of relevant factors "is
largely within the court's informed discretion."
United States v.
Clogston, 662 F.3d 588, 593 (1st Cir. 2011).

The defendant does not contend that it was error for the
district court to consider the Puerto Rico crime rate and kindred
matters in reaching its sentencing determination.
Nor could he.
We have squarely held that "a sentencing judge may consider

community-based and geographic factors."
United States v. Flores-
Machicote, 706 F.3d 16, 22-23 (1st Cir. 2013).

is
appropriate
because
"[c]ommunity-based
Such an appraisal
considerations
are
inextricably intertwined with deterrence," and "[d]eterrence is

widely
recognized
calculus."
as
an
important
factor
in
the
sentencing
Id. at 23 (citing 18 U.S.C. 3553(a)(2)(B)).

Here, the defendant makes a narrower argument: he insists
that it was error for the district court to put so much weight on
these parochial concerns.
This insistence is misplaced.
Although
"[i]t is possible for a sentencing judge to [err by] focus[ing] too
-6-
much on the community and too little on the individual," id. at 24,
that phenomenon did not occur here.
To begin, the sentencing judge explicitly noted that he
had
considered
all
of
the
section
3553(a)
factors.
Such
statement is entitled to significant weight, see, e.g., United

States v. Dvila-Gonzlez, 595 F.3d 42, 49 (1st Cir. 2010), and the
record here offers no reason to doubt the judge's word.
Indeed,
the judge discussed (albeit briefly) a number of the section

3553(a) factors, including the serious nature of the offenses of
conviction, the defendant's unattractive criminal history,3 and the
need for adequate deterrence.
So, too, the judge specifically addressed the defendant's
potentially mitigating personal background and traits.
explained
that
he
had
considered
the
defendant's
While he
arguments
concerning these matters as well as the available documentation, he

did not give them much credit.
By the same token, he heard
extensive arguments and engaged in a protracted colloquy anent the

defendant's claim of diminished mental capacity; in the end,
however, he was singularly unimpressed.
It would serve no useful purpose to cite additional book
and verse.
The short of it is that the record reflects that the
Reading the sentencing transcript as a whole, we believe

that it is safe to say that the judge implicitly found that the
defendant's criminal history score substantially under-represented
his past involvement in violent crime.
-7-
sentencing court sufficiently reviewed the section 3553(a) factors.

On the one hand, the court considered the violent circumstances of
the defendant's crime and the implications of his criminal history;
on
the
other
hand,
it
considered
the
defendant's
personal
circumstances, including his claim of diminished mental capacity.

The court weighed the aggravating factors more heavily than the
mitigating factors, and then explained why a substantial upward
variance was indicated.
The defendant alleges that the district court did not
adequately explain his sentence.4
See Gall, 552 U.S. at 51
(discussing sentencing court's duty "to adequately explain the

chosen sentence").
This allegation is belied by the record: the
court below may not have waxed longiloquent but "brevity is not to
be confused with inattention." United States v. Turbides-Leonardo,
468 F.3d 34, 42 (1st Cir. 2006).
Here, moreover, any gaps in the
court's reasoning can easily be filled by "comparing what was

argued by the parties or contained in the pre-sentence report with
what the judge did."
United States v. Jimnez-Beltre, 440 F.3d
514, 519 (1st Cir. 2006) (en banc).
The defendant's claim of error is circumscribed.

Even
though the district court did not provide a written statement of
reasons pursuant to 18 U.S.C. 3553(c)(2), the defendant did not
challenge this omission below.
Nor does he do so on appeal.
Consequently, any claim based on this omission is waived.
See
Igarta v. United States, 626 F.3d 592, 603 (1st Cir. 2010); United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
-8-
This sort of triage is the essence of the obligation that

the law imposes on a sentencing judge.
Taking into account the
totality of the circumstances, it is evident that here, as in

Flores-Machicote,
"the
judge
may
have
lingered
longer
than
necessary on community characteristics, [but] the claim that he did

not give individualized attention to the sentencing determination
is unfounded."
706 F.3d at 24.
Having found no procedural error, we turn next to the

defendant's claim that the sentence was substantively unreasonable.
At
bottom,
discussed:
this
its
claim
central
repackages
theme
is
the
that
assertions
previously
the
overvalued
court
community-based factors and undervalued the defendant's personal

circumstances, resulting in an unreasonably harsh sentence.
There is rarely, if ever, a single correct sentence in
any specific case.
Instead, there is almost always a "range of
reasonable sentences" for any given offense.

92.
Martin, 520 F.3d at
When choosing a particular sentence, "the district court
possesses
number
of
institutional
superior coign of vantage."
advantages,
including
United States v. Madera-Ortiz, 637
F.3d 26, 30 (1st Cir. 2011) (internal quotation mark omitted).
In
the last analysis, "the linchpin of a reasonable sentence is a

plausible sentencing rationale and a defensible result."
520 F.3d at 96.
-9-
Martin,
Variant sentences, whether above or below the GSR, are

reviewed
in
light
of
these
principles.
When
reviewing
the
reasonableness of a variant sentence, the highly deferential abuseof-discretion standard remains in full force. See United States v.
Gallardo-Ortiz, 666 F.3d 808, 811-12 (1st Cir. 2012).
Although an
appellate court must take into account the full extent of any
variance, the dispositive question remains whether the sentence is
reasonable in light of the totality of the circumstances.
See id.
In the case at hand, we have scant difficulty concluding

that
the
defendant's
above-the-range
objectives of sentencing."
85, 91 (2007).
sentence
"serve[d]
the
Kimbrough v. United States, 552 U.S.
The defendant wielded a firearm to commit a brutal
attack on a police officer.
The record makes manifest that this
incident was part and parcel of a persistent pattern of serious

crimes a pattern that the sentencing court was entitled to find
could not be excused by either the unhappy circumstances of the
defendant's childhood or his mental capacity.
To cinch matters,
the court's "positive reasons" for imposing its chosen sentence

were sufficient to ground the variance.
United States v. Navedo-
Concepcin, 450 F.3d 54, 58-59 (1st Cir. 2006). In particular, the
court closely connected the deterrent effect of the variance to the
specifics of the defendant's crime and his felonious past.
United States v. Politano, 522 F.3d 69, 74 (1st Cir. 2008).
See
A
sentencing court's reasons for a variance "should typically be
-10-
rooted either in the nature and circumstances of the offense or the

characteristics of the offender."
sentence
imposed
in
this
case
Martin, 520 F.3d at 91.

was
rooted
in
both
sets
The
of
considerations.
We have said before, and today reaffirm, that when a
sentencing court varies from a properly calculated GSR, the factors
that it chooses to emphasize "must add up to a plausible rationale
[] and must justify a variance of the magnitude in question."
Id.
For the reasons elucidated above, the district court's calibration

of the sentencing scales passes this test. The mere fact that "the
sentencing court chose not to attach to certain of the mitigating
factors the significance that the appellant thinks they deserved
does not make the sentence unreasonable."
593.
Clogston, 662 F.3d at
The decisive consideration is that the sentence that the
court chose, though severe, was not outside the wide universe of
reasonable sentences for the offenses of conviction.
We need go no further.
Where, as here, a defendant who
has compiled a history of violence commits a vicious crime, he

scarcely can be heard to complain that the sentencing judge meted
out a correspondingly stiff sentence. After all, "whatsoever a man
soweth, that shall he also reap."
-11-
Galatians 6:7.
The defendant's sentence is affirmed.
We retain jurisdiction for
the purpose of considering the separate claim of the co-appellant.

See supra note 1.
-12-

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United States Court of Appeals

For the First Circuit

APPEAL FROM THE UNITED STATES DISTRICT COURT

Hctor E. Guzmn, Jr., Federal Public Defender, Hctor L.

February 28, 2014

defendant-appellant Juan Felix Santiago-Rivera was sentenced to a

The defendant appeals, arguing that the

district court failed to make an individualized assessment of his

After careful consideration, we affirm.1

2012, a police officer saw the defendant walking down a road in

The defendant fit the description of a

suspect in an aborted carjacking that had been attempted earlier

The officer drew his sidearm and ordered the defendant

In response, the defendant shot the officer, seriously

He then struck the officer in the head with his

indictment against the defendant.

Count 1 charged carjacking

resulting in serious bodily injury, see 18 U.S.C. 2119(2); count

The defendant's counsel below, Joannie Plaza-Martinez,

possession of a stolen firearm, see id. 922(j), 924(a)(2).

investigation report (PSI Report), which grouped counts 1 and 3

See USSG 3D1.2.

For the grouped

counts, the probation officer recommended an adjusted offense level

yielded a GSR of 121 to 151 months on the grouped counts.

Finally, the PSI Report contained a victim impact

statement describing the considerable physical, psychological,

counsel argued for a downward variance a 15-year sentence.

attorney emphasized that the defendant had endured a troubled

The prosecutor rejoined that the victim had been forced

The prosecutor argued that the

court went on to say that it was "duty-bound to consider Puerto

timely appeal ensued.

v. United States, 552 U.S. 38, 51 (2007); United States v. Martin,

Within this rubric, we assay the

interpretation and application of the guidelines de novo.

procedural error emerges, the district court's ultimate choice of

To be precise, this sentence was imposed only on count 1, as

We start with the defendant's claim that the district

general mine-run of sentencing factors is delineated in 18 U.S.C.

It is common ground that a sentencing court may commit

procedural error by "failing to consider the 3553(a) factors."

But the weighing of relevant factors "is

largely within the court's informed discretion."

Clogston, 662 F.3d 588, 593 (1st Cir. 2011).

Nor could he.

We have squarely held that "a sentencing judge may consider

United States v. Flores-

Machicote, 706 F.3d 16, 22-23 (1st Cir. 2013).

inextricably intertwined with deterrence," and "[d]eterrence is

Id. at 23 (citing 18 U.S.C. 3553(a)(2)(B)).

This insistence is misplaced.

"[i]t is possible for a sentencing judge to [err by] focus[ing] too

statement is entitled to significant weight, see, e.g., United

the judge discussed (albeit briefly) a number of the section

concerning these matters as well as the available documentation, he

By the same token, he heard

extensive arguments and engaged in a protracted colloquy anent the

The short of it is that the record reflects that the