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United States v. Méndez-Báez

United States Court of Appeals, First Circuit

June 17, 2019

UNITED STATES OF AMERICA, Appellee,
v.
KEVIN JONIEL MÉNDEZ-BÁEZ, Defendant, Appellant.

          APPEAL 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.

          Julia 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.

          Before Howard, Chief Judge, Kayatta and Barron, Circuit Judges.

          HOWARD, CHIEF JUDGE.

         Appellant 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.

         I. BACKGROUND

         On 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 to him.

         A grand 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.

         In his 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.

         The 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 appeal.

         II. ANALYSIS

         Méndez 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 ...


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