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United States v. Zapata-Vazquez

United States Court of Appeals, First Circuit

January 30, 2015

UNITED STATES OF AMERICA, Appellee,
v.
GIOVANNY ZAPATA-VÁZQUEZ, Defendant, Appellant

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

Lydia Lizarríbar-Masini on brief for appellant.

Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and John A. Mathews II, Assistant United States Attorney, on brief for appellee.

Before Torruella, Kayatta, and Barron, Circuit Judges.

OPINION

Page 22

KAYATTA, Circuit Judge.

Defendant-appellant Giovanny Zapata-Vázquez (" Zapata" ) appeals the district court's imposition of an above-Guidelines prison sentence of 72 months after he pleaded guilty to one count of possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). Finding no error, we affirm.

I. Background

Because this appeal follows a guilty plea, we derive the facts from the plea agreement, the change-of-plea colloquy, the unchallenged portions of the presentence investigation report, and the sentencing hearing transcript. United States v. Ocasio-Cancel, 727 F.3d 85, 88 (1st Cir. 2013). Patrolling police officers approached Zapata and two other individuals after the officers observed the group in an abandoned residence and smelled marijuana. The officers seized 64 small bags of cocaine base (" crack cocaine" ) and a loaded 9mm pistol. Zapata admitted that the firearm and drugs belonged to him, and then consented to a search of his vehicle. He told the officers that they would find marijuana, two loaded magazines, and a large amount of cash, all of which the officers did find. At the time of the offense, Zapata was on probation for a local drug distribution offense.

Zapata was charged with one count of possession with intent to distribute crack cocaine, 21 U.S.C. § 841(a)(1), and one count of possessing a firearm in furtherance of a drug crime, 18 U.S.C. § 924(c)(1)(A). Zapata pleaded guilty to

Page 23

the firearm offense.[1] According to a written plea agreement entered pursuant to Fed. R. Crim. P. 11(c)(1)(B), Zapata and the government recommended a prison sentence of 60 months, which was the Guidelines sentence for the offense. See U.S.S.G. § 2K2.4(b); 18 U.S.C. § 924(c)(1)(A)(i). Although the district court " perfectly underst[oo]d the reasons why the parties . . . recommended a sentence of 60 months, because of the fact that Mr. Zapata came forth immediately and admitted what he did," the court nonetheless imposed a variant sentence of 72 months primarily because of the seriousness of the firearm offense in a community, like Puerto Rico, where such crimes are pervasive, and because Zapata was on probation at the time of the offense. Zapata now challenges the reasonableness of his variant sentence.

II. Analysis

We review the reasonableness of a sentence for an abuse of discretion. United States v. Del Valle-Rodríguez, 761 F.3d 171, 176 (1st Cir. 2014). We first look for procedural error, including " failing to consider appropriate sentencing factors, predicating a sentence on clearly erroneous facts, or neglecting to explain the rationale for a variant sentence ...


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