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United States v. Caballero-Vazquez

United States Court of Appeals, First Circuit

July 18, 2018


          APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Francisco A. Besosa, U.S. District Judge] [Hon. Carmen Consuelo Cerezo, U.S. District Judge]

          Johnny Rivera-González and Johnny Rivera's Law Office, on brief for appellant.

          Mainon A. Schwartz, 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 Kayatta, Circuit Judges.

          TORRUELLA, Circuit Judge.

         After pleading guilty in two separate cases, Joshuan David Caballero-Vázquez was sentenced first for possessing ammunition as a convicted felon (the "Felon in Possession Case") and then for possessing a machine gun (the "Machine Gun Case"). In this consolidated appeal, he now challenges both of those sentences on procedural and substantive grounds. We affirm both sentences.

         I. Background

         We begin with an overview of the intertwined factual and procedural events leading up to this appeal. Because this appeal follows two different guilty pleas, we draw the facts from the plea agreements, change-of-plea colloquies, presentence investigation reports (PSRs), and sentencing hearings in both cases. See United States v. Reyes-Rivera, 812 F.3d 79, 82 (1st Cir. 2016).


         We start with the facts giving rise to the Machine Gun Case. On March 7, 2015, an officer from the Manatí, Puerto Rico Municipal Police stopped Caballero-Vázquez after observing him drive a Ford Edge against traffic, and then up onto the sidewalk. After asking Caballero-Vázquez for his license and registration, the officer noticed that the registration information Caballero-Vázquez provided did not match the number on the vehicle's registration sticker. Suspecting a false registration sticker, the officer seized both Caballero-Vázquez and the Ford Edge and brought them to the Manatí Municipal Police Station. There, an inventory search of the vehicle yielded a loaded Glock .40 caliber pistol that had been modified to function as a machine gun. Moreover, a database search using the Glock's serial number would later reveal that it had been reported as stolen from the residence of its legal owner.

         A grand jury returned a one-count indictment against Caballero-Vázquez for possessing a machine gun. See 18 U.S.C. §§ 922(o), 924(a)(2). On September 2, 2015, Caballero-Vázquez, after entering into a type-B plea agreement with the government, pleaded guilty to that count. See Fed. R. Crim. P. 11(c)(1)(B). The parties jointly calculated a guidelines range to serve as the basis for the plea agreement's sentencing recommendation. They began with a base offense level of 18, see U.S.S.G. § 2K2.1(a)(5), but then subtracted three levels because Caballero-Vázquez had accepted responsibility, see id. § 3E1.1, thereby arriving at an adjusted offense level of fifteen. The parties did not stipulate to any particular Criminal History Category (CHC). The parties then agreed to recommend that the district court sentence Caballero-Vázquez to a term of imprisonment at the lower end of whatever it ultimately determined to be the applicable guidelines range. Caballero-Vázquez agreed to waive his right to appeal if he received a sentence in accordance with the plea agreement's recommendation.

         The United States Probation Office then prepared a PSR, which differed from the parties' guidelines calculations in only one respect. The PSR added two levels because the firearm in question had been reported stolen, see id. § 2K2.1(b)(4), resulting in a total offense level of 17. The PSR assigned Caballero-Vázquez a criminal history score of zero. Caballero-Vázquez objected to the stolen-gun enhancement on the grounds that neither the indictment nor the plea agreement discussed the gun having been stolen. The government did not oppose that objection, consistent with the plea agreement's provision that neither party would seek additional offense-level enhancements or deductions.


         The facts of the Felon in Possession Case are these. While his objection to the stolen-gun enhancement in the Machine Gun Case was pending, officers from the Puerto Rico Police Department on patrol in Manatí spotted Caballero-Vázquez -- who had been released on bail -- driving a Hyundai Tucson that matched the description of a vehicle that had been reported stolen. The officers attempted to stop Caballero-Vázquez, but he did not acquiesce, and instead drove off. Reinforcements arrived and blocked his path. Caballero-Vázquez pointed a gun at one of the vehicles blocking his way, and then proceeded to lead the officers on a high-speed chase through Manatí. Ultimately, Caballero-Vázquez abandoned his vehicle, leaving the keys in the ...

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