FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Gustavo A. Gelpí, U.S. District
Millán on brief for appellant.
Emilia Rodríguez-Vélez, United States Attorney,
Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, and Thomas F. Klumper,
Assistant United States Attorney, Senior Appellate Counsel,
on brief for appellee.
Howard, Chief Judge, Selya and Lynch, Circuit Judges.
Jonathan Frank Miranda-Díaz pleaded guilty to one
count of possession of a firearm as a convicted felon.
See 18 U.S.C. § 922(g)(1). Varying upward from
the applicable guideline sentencing range (GSR), the district
court sentenced the appellant to a 36-month term of
immurement. Taking aim at the sentencing court's
consideration of both the conduct underlying a dismissed
charge and a prior controlled substance conviction, the
appellant submits that his sentence is both procedurally and
substantively unreasonable. Concluding that the sentence is
sound, we affirm.
briefly rehearse the relevant facts and travel of the case.
When - as in this instance - a sentencing appeal follows a
guilty plea, we draw the facts "from the change-of-plea
colloquy, the unchallenged portions of the presentence
investigation report (PSI Report), and the record of the
disposition hearing." United States v.
Dávila-González, 595 F.3d 42, 45 (1st
Cir. 2010) (quoting United States v.
Vargas, 560 F.3d 45, 47 (1st Cir. 2009)).
morning of May 10, 2017, police officers in Carolina, Puerto
Rico, carried out a traffic stop after observing the
appellant drive through a red light. Upon approaching the
appellant's vehicle, the officers spotted a firearm near
the appellant's thigh. Once the appellant admitted that
he lacked a license to carry a firearm, the officers arrested
him. At the same time, they seized a .40 caliber Glock pistol
loaded with nine rounds of ammunition and an additional Glock
magazine (also loaded with nine rounds of ammunition) from
an interview later that morning with Bureau of Alcohol,
Tobacco, Firearms and Explosives (ATF) agents, the appellant
stated that he had obtained the firearm from a friend the day
before and that he was on his way to purchase drugs for his
personal consumption when stopped. He volunteered that he had
arrived in Puerto Rico six days earlier from New York, where
he was on parole "for possession of [one] kilogram of
cocaine." A background check soon revealed that the
appellant had previously been convicted of a crime punishable
by imprisonment for more than one year.
course, a federal grand jury sitting in the District of
Puerto Rico returned a single-count indictment, charging the
appellant with possession of a firearm as a convicted felon.
See 18 U.S.C. § 922(g)(1). After some
preliminary skirmishing, not relevant here, the appellant
pleaded guilty to this charge.
disposition hearing, the district court heard arguments of
counsel and the appellant's allocution. Emphasizing the
heightened need for deterrence in light of the
appellant's earlier brushes with the law, the government
requested a 21-month prison sentence. Before the
appellant's counsel spoke, the court suggested that she
address its concern that the appellant was an individual for
whom "the guidelines do not necessary make justice"
and that, therefore, the case "perhaps would warrant an
upward variance." In response, counsel noted the
appellant's successful completion of a diversionary
drug-treatment program, his work as a barber while in prison,
and the likelihood that he would face an additional state
sentence for violating the conditions of his parole. In light
of these considerations, she deemed a 17-month prison
sentence sufficient. Without objection, the district court
adopted the guideline calculations limned in the PSI Report,
set the appellant's total offense level at 12, and placed
him in criminal history category III. These uncontested
determinations yielded a GSR of 15 to 21 months. After
mulling the sentencing factors elaborated in 18 U.S.C. §
3553(a), the court varied upward and imposed a 36-month term
process, the court explained its sentencing rationale. To
begin, the court observed that over the previous "five
[to] six years," the appellant had squandered
"opportunity after . . . opportunity after . . .
opportunity" to live in a law-abiding manner. The court
mentioned three relevant data points to undergird this
the court referenced a 2011 robbery charge in Puerto Rico.
Drawing on factual details that the appellant himself had
reported to the probation officer, the court noted that this
charge had been reclassified as an illegal appropriation
charge and then dismissed following the appellant's
completion of a diversionary drug-treatment
program. But, the court observed, the appellant had
absconded from the drug-treatment program at one point.
According to unchallenged statements in the PSI Report, he
was arrested and ...