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United States v. Roman-Diaz

United States Court of Appeals, First Circuit

April 7, 2017

ELVIN ROMÁN-DÍAZ, Defendant, Appellee.


          Barry S. Pollack and Pollack Solomon Duffy LLP on brief for appellant.

          Rosa 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.

          Before Lynch, Selya and Kayatta, Circuit Judges.

          SELYA, Circuit Judge.

         Defendant-appellant 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.

         I. BACKGROUND

         A 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 Cir. 1991).

         During 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.

         On July 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.

         In the 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. §1B1.3(a)).[1]

         The 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.

         After 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, [2] this recasting yielded a GSR of 360-480 months for count one. See id. §5G1.1(a).

         With 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).

         The 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 ...

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