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United States v. Sosa-Gonzalez

United States Court of Appeals, First Circuit

August 14, 2018

UNITED STATES OF AMERICA, Appellee,
v.
OMAR SOSA-GONZALEZ, Defendant, Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO Hon. Francisco A. Besosa, U.S. District Judge

          Luis A. Guzmán Dupont on brief for appellant.

          Mariana E. Bauzá-Almonte, Assistant United States Attorney, Steven Liong-Rodríguez, Special Assistant United States Attorney, and Rosa Emilia Rodríguez-Vélez, United States Attorney, on brief for appellee.

          Before Howard, Chief Judge, Lynch and Thompson, Circuit Judges.

          LYNCH, CIRCUIT JUDGE.

         This is a sentencing appeal. Omar Sosa-González ("Sosa") pleaded guilty to one count of being a felon in possession of a firearm and ammunition and to one count of possession of a machine gun, in violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 922(o) respectively. Sosa challenges his sixty-six month sentence on procedural and substantive reasonableness grounds. We affirm the sentence.

         I.

         The background facts are these. On March 13, 2017, agents of the Puerto Rican Police Department ("PRPD") were told that a man -- later identified as Sosa -- had been seen carrying a firearm in public. An agent of the PRPD then surveilled Sosa's residence on March 15 and 17, and saw Sosa carrying a handgun while Sosa walked from his car to his residence. PRPD agents then executed a search warrant on Sosa's residence on March 28, 2017.

         This search uncovered a loaded AK-47 rifle and 28 rounds of 7.62 caliber ammunition in Sosa's room. After knowingly waiving his rights, Sosa told the agents that the rifle belonged to him and that no other members of his family knew about his possession of the rifle. Sosa also told agents that the rifle was fully automatic.

         Further police investigation determined that: the rifle was modified to shoot more than one round of ammunition, without manual reloading, by a single function of the trigger; Sosa had been convicted of crimes punishable by terms of imprisonment exceeding one year previously; and the rifle and ammunition had not been manufactured in Puerto Rico. The modification of the rifle made it qualify as a machine gun under 18 U.S.C. § 922(o).

         In April 2017, a grand jury in the district of Puerto Rico indicted Sosa for being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1), and for possession of a machine gun, in violation of 18 U.S.C. § 922(o).

         Pursuant to a plea agreement, Sosa stipulated to the facts discussed here, and agreed to plead guilty to one count of being a felon in possession of a firearm and ammunition and to one count of possession of a machine gun. The sentencing calculation in the plea agreement started with a Base Offense Level of 22, coupled with a three-level reduction for timely acceptance of responsibility.

         There was no stipulation as to Sosa's Criminal History Category. Sosa had six state-level convictions in Puerto Rico, including for: unlicensed firearm possession (six month sentence), unlawful ammunition possession (three year and one day sentence), two counts of possession of controlled substances (twenty-four month sentence), and two counts of conspiracy to possess with intent to distribute controlled substances (thirty month sentence).

         The parties agreed that each would seek a sentence within the Guidelines sentencing range ("GSR") for a Total Offense Level ("TOL") of 19 and the relevant Criminal History Category. Sosa agreed to waive his right to appeal if the district court imposed a sentence of fifty-seven months or less, and acknowledged that the district court could, ...


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