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United States v. Millan-Roman

United States Court of Appeals, First Circuit

April 14, 2017

UNITED STATES OF AMERICA, Appellee,
v.
JOSE A. MILLAN-ROMAN, Defendant, Appellee.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. José Antonio Fusté, U.S. District Judge]

          Carlos M. Sánchez La Costa for appellant.

          Francisco A. Besosa-Martínez, Assistant United States Attorney, Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, on brief, for appellee.

          Before Torruella, Thompson, and Barron, Circuit Judges.

          BARRON, Circuit Judge.

         This appeal requires us to review José Millán-Román's challenge to the 120-month prison sentence that he received after he pled guilty, pursuant to a plea agreement, to two offenses: possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c), and possession of controlled substances with intent to distribute, in violation of 18 U.S.C. § 841(b)(1)(C). We affirm.

         I.

         Millán entered his plea in June 2015. The plea agreement set forth detailed recommendations regarding the sentence.

         As to the firearms count, the plea agreement stated that the applicable sentence under the United States Sentencing Commission Guidelines was 60 months of imprisonment -- the statutory minimum sentence for that offense. See U.S.S.G. §2K2.4(b) (noting that the guideline sentence for a conviction under 18 U.S.C. § 924(c) is the minimum term of imprisonment required by statute). Nonetheless, the plea agreement recommended an upward-variant sentence of 84 months of imprisonment. The plea agreement did not give a reason for this upward-variant sentence, but Millán's defense counsel acknowledged at sentencing that the parties had stipulated to a sentence higher than the statutory minimum "knowing that [the sentencing judge] was not going to give him [the statutory minimum]."

         Regarding the controlled-substances count, the plea agreement stated that, under the Guidelines, Millán had a base offense level of twelve, but that he was entitled to a two-level reduction for acceptance of responsibility under U.S.S.G. §3E1.1. The plea agreement thus calculated Millán's total offense level to be ten.

         The plea agreement did not set forth a criminal history category ("CHC") for Millán. But the plea agreement stated that the recommended sentencing range under the Guidelines would be 6-12 months of imprisonment if Millán had a CHC of I and 8-14 months of imprisonment if Millán had a CHC of II.

         The plea agreement then recommended a sentence of six months of imprisonment for the controlled-substance offense. The plea agreement also recommended that this sentence be served consecutively to the 84-month prison sentence for the firearms offense. Thus, the plea agreement recommended a total sentence of 90 months' imprisonment.

         On September 22, 2015, the District Court imposed a sentence of 114 months' imprisonment for the firearm offense, and six months' imprisonment for the controlled-substance offense, to be served consecutively, for a total prison sentence of 120 months. The District Court also imposed five years' supervised release.

         On appeal, Millán contends that the District Court committed a number of errors -- some of which he characterizes as procedural and others as substantive -- ...


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