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United States v. Santini-Santiago

United States Court of Appeals, First Circuit

January 27, 2017



          Luz M. Ríos-Rosario on brief for appellant.

          Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Julia M. Meconiates, Assistant United States Attorney, on brief for appellee.

          Before Torruella, Stahl, and Kayatta, Circuit Judge.

          KAYATTA, Circuit Judge.

         Kelvin Santini-Santiago ("Santini") pled guilty to being a prohibited person in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).[1]Although the applicable sentencing guidelines range recommended a term of imprisonment of twelve to eighteen months, the district court sentenced him to thirty-six months' imprisonment to be followed by a three-year term of supervised release. Santini now challenges his sentence on three bases. First, he contends that he did not receive adequate notice that the court was considering an upward departure from the applicable guidelines range. Second, he argues that the district court inappropriately found facts and relied on unproven accusations to increase his term of imprisonment. Third, he avers that the sentencing judge was biased against him and should have recused herself. Finding none of these arguments persuasive, we affirm Santini's sentence.

         I. Discussion

         We typically review sentencing decisions for abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). Because Santini failed to raise contemporaneous objections in the court below, however, "the plain error standard supplants the customary standard of review." United States v. Arroyo-Maldonado, 791 F.3d 193, 197 (1st Cir. 2015) (quoting United States v. Fernández-Hernández, 652 F.3d 56, 71 (1st Cir. 2011)). "Under this rigorous standard, an appellant must demonstrate '(1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant's substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings.'" United States v. Colón de Jesús, 831 F.3d 39, 44 (1st Cir. 2016) (quoting United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).

         Santini challenges only the procedural reasonableness of his sentence. We address his arguments in the order in which he presents them.

         A. Variance or Departure?

         Santini first invokes Federal Rule of Criminal Procedure 32(h), which provides in pertinent part that "[b]efore [a] court may depart from the applicable sentencing range on a ground not identified for departure in the presentence report or in a party's prehearing submission, the court must give the parties reasonable notice that it is contemplating such a departure." Santini contends that the sentence he received was the result of a departure from the applicable guidelines sentencing range based on the court's view of information contained in the presentence report probation supplied, and that neither the presentence report nor the court warned him that such a departure was in the offing.

         Rule 32(h) is a vestige of the time before United States v. Booker, 543 U.S. 220 (2005), an era when the guidelines were mandatory and variances were little more than a gleam in the eye of the Supreme Court. See Fed. R. Crim. P. 32(h) advisory committee's note to 2002 amendment (describing the addition of Rule 32(h)). Booker eliminated the need for sentencing courts to rely on departures to justify movements away from the guidelines sentencing range. Booker, 543 U.S. at 259-60. Instead, post-Booker, a sentencing court can pick a sentence outside the applicable guidelines sentencing range simply by announcing a discretionary "variance." Rule 32(h), in turn, does not apply to variances. See Irizarry v. United States, 553 U.S. 708, 714 (2008); United States v. Pantojas-Cruz, 800 F.3d 54, 60 (1st Cir. 2015).

         So one might therefore ask: Is there any situation in which a movement away from the applicable guidelines sentencing range can be justified as a departure, but not as a variance? For practical purposes, the answer would seem to be "no." The guidelines authorize a variety of "departures." Many account for identified "offense characteristics or offender characteristics." U.S.S.G. § 5K2.0, cmt. 2(A); id. §§ 5K2.1-24. Others counsel moving upward or downward from a given sentencing range based on a defendant's criminal history. See, e.g., id. § 4A1.3. Section 5K3.1 of the guidelines also authorizes departures for an "early disposition program." In short, departures are justified by reference to specified characteristics of the offense or the offender, or to an early disposition program. Variances, in turn, can also be justified by "the nature and circumstances of the offense" and "the history and characteristics of the defendant, " plus much more, such as "deterrence, " inducing "respect for the law, " and effective "correctional treatment." 18 U.S.C. § 3553(a); see Gall, 552 U.S. at 49-50.

         All of this means that we are at a loss to identify any movement away from the applicable guidelines sentencing range that can be justified as a departure but not as a variance. And absent such an example, or some change in either the sentencing factors provided under § 3553(a) or the Guidelines' grounds for departure, Rule 32(h) as it presently stands serves no substantive purpose at all. See United States v. Brown, 732 F.3d 781, 786 (7th Cir. 2013) ...

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