FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Aida M. Delgado-Colón, U.S. District
S. Pollack and Pollack Solomon Duffy LLP on brief for
Emilia Rodríguez-Vélez, United States Attorney,
Mariana E. Bauzá Almonte, Assistant United States
Attorney, Chief, Appellate Division, and Thomas F. Klumper,
Assistant United States Attorney, Senior Appellate Counsel,
on brief for appellee.
Lynch, Selya and Kayatta, Circuit Judges.
Elvin Román-Díaz asserts that the sentencing
court erred in "departing" from one criminal
history category (CHC) to another without notice or an
opportunity to be heard. He further asserts that the
sentencing court erred in ordering his federal sentence to
run consecutive to an undischarged state sentence. Finding no
departure and no abuse of discretion in the imposition of the
challenged consecutive sentence, we affirm.
summary of pertinent events suffices to lend perspective. We
draw the facts from the plea agreement (the Agreement), the
change-of-plea colloquy, the undisputed portions of the
presentence investigation report (PSI Report), and the
sentencing transcript. See United States v.
Dávila-González, 595 F.3d 42, 45 (1st Cir.
2010); United States v. Dietz, 950 F.2d 50, 51 (1st
2012, the appellant and others engaged in a conspiracy to
distribute controlled substances in and around Ponce, Puerto
Rico. The appellant functioned as an enforcer for the drug
ring and also stored drugs and weapons for it. While the
conspiracy was velivolant, a high-school student (Juan
Ruiz-Vega) was shot and killed with a rifle owned by a member
of the drug ring.
24, 2013, a federal grand jury sitting in the District of
Puerto Rico handed up a two-count indictment charging the
appellant with conspiring to possess with intent to
distribute in excess of 280 grams of cocaine base (crack
cocaine) and detectable amounts of cocaine, heroin, and
marijuana, in violation of 21 U.S.C. §§ 841(a)(1)
and 846 (count one), and aiding and abetting in the
possession of a firearm in furtherance of a drug-trafficking
crime, in violation of 18 U.S.C. § 924(c) (count two).
After some skirmishing, not relevant here, the appellant pled
guilty to both counts pursuant to the Agreement.
Agreement, the appellant stipulated to handling, as part of
the conspiracy, at least 112 grams but less than 196 grams of
crack cocaine. The parties agreed that this drug weight
corresponded to a base offense level of twenty-eight for
count one, see USSG §2D1.1, and that a
three-level credit for acceptance of responsibility was
warranted, see id. §3E1.1. The parties further
agreed to recommend a sixty-month sentence on count one and a
consecutive sixty-month mandatory minimum sentence on count
two. Finally, the parties agreed to recommend that the
aggregate federal sentence be served concurrently with an
undischarged 1, 000-year state sentence previously imposed
for convictions related to the Ruiz-Vega murder (which the
parties considered to be relevant conduct, see id.
Agreement contained no stipulation as to either the
appellant's CHC or his anticipated guideline sentencing
range (GSR). The Agreement's offense level and sentencing
recommendations, though, offer some indication that the
parties held out the hope that the appellant would be placed
in CHC I.
accepting the appellant's plea, the district court
ordered the probation office to prepare the PSI Report. When
received, the report recommended that the court apply the
murder cross-reference, see id. §2D1.1(d)(1),
on the ground that the Ruiz-Vega murder took place in the
course of the conspiracy. Accepting this recommendation had
the effect of increasing the appellant's adjusted offense
level from twenty-five to forty. See id.
§2A1.1. Combined with a recommended CHC of III,
this recasting yielded a GSR of 360-480 months for count one.
See id. §5G1.1(a).
respect to count two, the PSI Report was straightforward. It
recommended - as had the parties - the statutory minimum term
of sixty months' imprisonment. See 18 U.S.C.
§ 924(c)(1)(A)(i); USSG §2K2.4(b); see also
United States v. Rivera-González, 776 F.3d 45, 49
(1st Cir. 2015) (explaining that the statutory minimum
sentence is, in such circumstances, the guideline sentence).
district court convened the disposition hearing on September
24, 2015. The appellant beseeched the court to follow the
sentencing framework laid out in the Agreement and sentence
him to two consecutive sixty-month incarcerative terms (a
total of 120 months' imprisonment), to run concurrently
with his ...