FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Francisco A. Besosa, U.S. District Judge]
Yassmin Gonzalez-Velez and Gonzalez Velez Law Offices, PSC on
brief for appellant.
M. Meconiates, 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.
Howard, Chief Judge, Kayatta and Barron, Circuit Judges.
HOWARD, CHIEF JUDGE.
Kevin Joniel Méndez-Báez appeals his
incarcerative sentence of 60 months, 19 months above the
upper end of the advisory guidelines sentencing range. He
argues that the district court erred procedurally in not
considering all of the 18 U.S.C. § 3553(a) factors and
substantively in imposing too harsh a sentence. After careful
review, we affirm.
August 24, 2017, Puerto Rico police pulled over a car after
observing its apparently illegal window tint. The driver,
Méndez, produced a learner's driving permit and
told an officer that he did not have the car's
registration information. While inspecting the vehicle's
registration window decal, an officer observed an extended
ammunition magazine attached to a firearm on the floor of the
passenger side of the car. The police ordered Méndez
and his passenger, Jorge Roberto Rivera-Báez, out of
the vehicle. Neither Méndez -- who had been serving a
term of probation for a prior felony conviction -- nor Rivera
had a firearms permit. The officers placed the two men under
arrest and searched the vehicle, discovering that the firearm
was a .40 caliber Model 23 Glock pistol with an extended
29-round magazine attached, loaded with 22 rounds of
ammunition. The police also found two fully loaded 13-round
magazines. The pistol had a chip that modified it to fire as
a fully automatic weapon. After running the license plates
through their database, the officers learned that the car had
been flagged as "disappeared" by a financial
institution. At the station, Rivera -- the passenger --
stated that the pistol, the magazines, and the car belonged
jury charged Méndez with being a felon in possession
of a firearm and ammunition in violation of 18 U.S.C. §
922(g). He pled guilty. The pre-sentence report (PSR)
prepared by the probation office determined that
Méndez's total offense level (TOL) was 19 and his
criminal history category (CHC) was II, because of his
previous convictions for attempted murder and related firearm
offenses and because he committed the instant offense while
serving a term of probation. Méndez's guidelines
sentencing range (GSR) was calculated to be 33 to 41 months.
sentencing memorandum, Méndez argued for a sentence at
the low end of the GSR, noting that Rivera had admitted
ownership of the gun, ammunition, and the car, that he had
long suffered from an often-untreated psychological
condition, and that he was simply in the "wrong place
with the wrong person at the wrong time." The
government, meanwhile, argued for a sentence at the upper end
of the GSR, highlighting that Méndez was the driver of
the car that had been flagged as disappeared, that he
committed the instant offense while on probation for
attempted murder and related firearms offenses, and that his
prior sentence of probation had not deterred Méndez
from criminal activity.
district court accepted the PSR's calculated GSR. The
judge stated that he had considered the 18 U.S.C. §
3553(a) factors and the sentencing memorandum filed by
Méndez. The court focused particularly on the fact
that the firearm was modified to be fully automatic,
explaining that "[s]hort of bombs, missiles, and
biochemical agents, we can conceive of few weapons that are
more dangerous than machine guns," and that such weapons
"are not typically possessed by law-abiding citizens for
lawful purposes." The court also noted
Méndez's age, education, unemployment, history of
mental health treatment, and lack of substance abuse history.
The court concluded that an above-guidelines sentence was
warranted and sentenced Méndez to 60 months'
imprisonment. Méndez made no objection to his sentence
at the time it was imposed, but subsequently filed this
argues on appeal that the district court committed procedural
error by failing to consider critical factors in sentencing.
He further argues that his variant sentence was ...