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United States v. Torres-Figueroa

United States Court of Appeals, First Circuit

June 23, 2017

UNITED STATES OF AMERICA, Appellee,
v.
HECTOR LUIS TORRES-FIGUEROA, Defendant, Appellant.

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

          Jonathan G. Mermin and Preti, Flaherty, Beliveau & Pachios, LLP on brief for appellant.

          Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Julia M. Meconiates, Assistant United States Attorney, on brief for appellee.

          Before Barron, Selya, and Stahl, Circuit Judges.

          BARRON, Circuit Judge.

         Hector Luis Torres-Figueroa ("Torres") challenges his sentence of 60 months' imprisonment. We affirm.

         I.

         On September 10, 2015, Torres was indicted on four counts in the United States District Court for the District of Puerto Rico: first, possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C); second, possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C); third, possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i); and fourth, possession of a machine gun in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(B)(ii). On September 24, 2015, Torres was convicted by a jury of the first and second counts and acquitted of the third and fourth counts.

         The amended pre-sentence investigation report ("PSR") that the Probation Office prepared calculated Torres's base offense level by first grouping Count 1 and Count 2 into a single Count Group, pursuant to United States Sentencing Guidelines § 3D1.1(a). The PSR then determined that the applicable base offense level for that Count Group was 12, under U.S.S.G. § 2D1.1(c)(14), in consequence of the quantity of drugs involved. And, the PSR determined that Torres's criminal history category was II. The PSR then identified the sentencing range under the guidelines for Torres as 12-18 months' imprisonment.

         Before sentencing, the government submitted a sentencing memorandum recommending that a two-level enhancement be imposed under U.S.S.G. § 2D1.1(b), which applies when the defendant possessed a firearm during the drug trafficking offense. That enhancement, combined with Torres's criminal history category, would yield a sentencing range under the sentencing guidelines of 18-24 months' imprisonment. The government, however, recommended that the District Court impose a sentence of 120 months' imprisonment. The government based that recommendation on, among other things, Torres's extensive drug-related criminal history and the fact that the gun that was allegedly in Torres's possession while he was engaged in drug trafficking was a fully automatic rifle with an obliterated serial number.

         At sentencing, the District Court applied a base offense level under the sentencfng guidelines of 12. The District Court did so because the District Court determined that Torres's drug trafficking involved less than 50 grams of cocaine. U.S.S.G. § 2D1.1(a)(5). The District Court noted that Torres did not object to the imposition of the two-level firearms enhancement, but that the District Court was not going to impose the enhancement because "I should not give him the two points and double count if you will." Instead, the District Court made a guidelines calculation that, in accordance with the PSR, yielded a recommended sentencing range of 12-18 months' imprisonment, and then imposed a variant sentence of 60 months' imprisonment. The District Court did so on the basis of the testimony of law enforcement officers at trial indicating that Torres "[had] been involved in drugs for a long, long time, " and that he possessed, while committing the offenses for which he was convicted, a fully automatic rifle with the obliterated serial number, along with six magazines and over one hundred rounds of ammunition, notwithstanding that he was acquitted on the firearms counts. The District Court explained that it based 42 months of the 60 months of imprisonment on Torres's firearms-related conduct.

         II.

         Torres contends that the District Court erred by imposing a 42-month variance over and above the top of the 12-18 months sentencing range set forth in the sentencing guidelines. Torres argues that, under the guidelines, the firearms-related conduct should have resulted only in the application of the two-level enhancement to his base offense level, and thus should have resulted in a sentencing range under the sentencing guidelines of only 18-24 months' imprisonment. And Torres further contends that the District Court made clear that it could not impose both the enhancement and the variant sentence without "double counting." Thus, Torres argues that, "if the [District Court] had given the two-level [enhancement] -- as it was required to do -- it would not have imposed a variance on top of the resulting 18-to-24 month range."

         Torres concedes that he did not make this objection below. And, in fact, he specifically advised the District Court that it was not required to apply the two-level firearms enhancement, even if the evidence sufficed to support the enhancement's application. For that reason, the government argues that Torres has waived his right to contend now, in the ...


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