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United States v. Rivera-Gonzalez

United States Court of Appeals, First Circuit

January 20, 2015

UNITED STATES OF AMERICA, Appellee,
v.
KERMIT RIVERA-GONZÁLEZ, Defendant, Appellant

Page 46

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

Edwin E. Leon-Leon on brief for appellant.

Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Tiffany V. Monrose, Assistant United States Attorney, on brief for appellee.

Before Howard, Selya and Thompson, Circuit Judges.

OPINION

Page 47

SELYA, Circuit Judge.

Defendant-appellant Kermit Rivera-Gonzá lez challenges his 84-month sentence for a firearms offense. After careful consideration, we affirm.

I.

Background

Since this appeal trails in the wake of a guilty plea, we draw the facts from the plea agreement, the change-of-plea colloquy, the undisputed portions of the presentence investigation report (PSI Report), and the transcript of the disposition hearing. See United States v. Almonte-Nuñez, 771 F.3d 84, 86 (1st Cir. 2014); United States v. Del Valle-Rodríguez, 761 F.3d 171, 173 (1st Cir. 2014). Beginning in 2007 and continuing into 2010, the defendant engaged in a conspiracy to distribute controlled substances at various drug distribution points in San Juan, Puerto Rico. In carrying out his role in the conspiracy, he possessed and used firearms.

After a federal grand jury charged the defendant with various drug-trafficking offenses, the government filed a supplemental information containing two additional counts arising out of the defendant's possession, at the time of his apprehension, of four kilograms of marijuana (supplemental count 1) and four firearms (supplemental count 2). Although the defendant initially maintained his innocence, he soon entered into a non-binding plea agreement (the Agreement) with the government. See Fed. R. Crim. P. 11(c)(1)(B).

Pursuant to the Agreement, the defendant pleaded guilty to count 1 of the indictment (charging him with conspiring to possess with intent to distribute various controlled substances within 1,000 feet of a protected location, see 21 U.S.C. § § 841(a)(1), 846, 860), supplemental count 1 (charging him with possessing marijuana with intent to distribute, see id. § 841(a)(1)), and supplemental count 2 (charging him with possessing firearms in furtherance of a drug-trafficking offense, see 18 U.S.C. § 924(c)(1)(A)). The remaining five counts contained in the indictment were to be dismissed.

The Agreement made clear the parties' expectation that the guideline sentencing range (GSR) for count 1 would be 108 to 135 months and that the GSR for supplemental count 1 would be 6 to 12 months. These anticipated GSRs were based on the assumption that the defendant would be placed in criminal history category (CHC) I. The parties agreed that, should this assumption materialize, they would jointly

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recommend a 120-month sentence for count 1 and a concurrent 6-month sentence for supplemental count 1. With respect to supplemental count 2, they agreed to recommend the mandatory minimum 60-month term of immurement, to run consecutively to the sentences on the underlying drug charges. The parties' recommendation of a 60-month consecutive term for the gun charge was not contingent upon the sentencing court's CHC designation.

Some months after accepting the defendant's guilty plea, the district court received the PSI Report, which grouped the drug charges. See U.S.S.G. § 3D1.2. Using CHC I, the PSI Report set the GSR at 87 to 108 months for the grouped counts. The Report made only a passing reference to the gun charge, noting that the statute of conviction required a minimum 60-month consecutive term of imprisonment. See 18 U.S.C. § 924(c)(1); U.S.S.G. § 2K2.4(b).

At the disposition hearing, the district court, without objection, adopted the guideline calculations limned in the PSI Report. The government acknowledged that grouping had resulted in a lower GSR for the drug counts but nevertheless pressed for the imposition of the previously agreed 120-month sentence on count 1 and a 6-month sentence on supplemental count 1. The district court eschewed the non-binding sentencing recommendations contained in the ...


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