APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Carmen Consuelo Cerezo, U.S. District Judge.
Todd A. Bussert and Frost Bussert, LLC on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Carmen M. Má rquez-Marí n, Assistant United States Attorney, on brief for appellee.
Before Howard, Selya and Thompson, Circuit Judges.
SELYA, Circuit Judge.
After entering into a written plea agreement with a
commitment that the government would recommend a sentence of no more than 56
months, defendant-appellant Antoine Vega-Salgado pleaded guilty to being a
prohibited person in possession of a firearm. See 18 U.S.C. § 922(g)(1). The
district court, without objection, fashioned a guideline sentencing range (GSR)
significantly higher than that anticipated by the parties and -- notwithstanding
the government's recommendation of a 56-month incarcerative term -- proceeded to
impose a mid-range sentence (103 months). The appellant challenges both the
procedural propriety and the substantive reasonableness of the sentence.
Concluding, as we do, that the sentence imposed was free from error, we affirm.
We start by rehearsing the circumstances underlying this appeal. The appellant, a previously convicted felon, was found in possession of a small arsenal: a loaded 9mm pistol that had been modified to operate as a fully automatic machine gun, two magazines, and 38 rounds of ammunition. In due course, a federal grand jury sitting in the District of Puerto Rico returned an indictment charging the appellant with being a felon in possession of a firearm.
After initially maintaining his innocence, the appellant entered into a non-binding plea agreement with the government (the Agreement). See Fed. R. Crim. P. 11(c)(1)(B). In the Agreement, the parties projected the appellant's base offense level at 20. See U.S.S.G. § 2K2.1(a)(4)(B)(i)(II), (ii)(I). The government conceded that the appellant deserved a three-level reduction for acceptance of responsibility. See id. § 3E1.1(b). However, the Agreement made no effort to determine the appellant's criminal history category (CHC). Knowing that the applicable GSR could not be computed without pinpointing the CHC, the parties agreed to recommend a term of imprisonment " in the middle range of" whatever GSR proved appropriate.
The Agreement went on to spell out what the sentencing ranges might be if the adjusted offense level stipulated by the parties were combined with various CHCs. It specified that, at the highest possible CHC (VI), the GSR would be 51-63 months and the recommended mid-range sentence would total 56 months.
Once the Agreement was executed, the appellant tendered his guilty plea. A magistrate judge accepted it and ordered a Presentence Investigation Report (PSI Report).
In the course of preparing the PSI Report, the probation officer noted that the appellant had a number of prior convictions for aggravated felonies. The circumstances of these convictions boosted the appellant's base offense level to 26, see U.S.S.G. § 2K2.1(a)(1)(A)(ii), (B), and resulted in an adjusted offense level of 23. With this offense level in place, the probation officer assigned the appellant to CHC VI and set his GSR at 92-115 months. See id. ch. 5, pt. A (sentencing table).
Neither party objected to any portion of the PSI Report (including the probation officer's guideline calculations). At the disposition hearing, the district court ...