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United States v. Fernandez-Garay

United States Court of Appeals, First Circuit

May 20, 2015

UNITED STATES OF AMERICA, Appellee,
v.
JEAN C. FERNÁNDEZ-GARAY, Defendant, Appellant

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Juan M. Pérez-Giménez, U.S. District Judge.

Eric Alexander Vos, Federal Public Defender, Vivianne Marrero, Assistant Federal Public Defender, Supervisor Appeals Division, and Thomas Trebilcock-Horan, Assistant Federal Public Defender, on brief for appellant.

Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Thomas F. Klumper, Assistant United States Attorney, on brief for appellee.

Before Howard, Selya and Kayatta, Circuit Judges.

OPINION

SELYA, Circuit Judge.

In this sentencing appeal, defendant-appellant Jean C. Ferná ndez-Garay complains that his 120-month sentence is both procedurally and substantively flawed. Finding his complaints untenable, we affirm.

The events culminating in this appeal are embedded in a five-count indictment returned by a federal grand jury sitting in the District of Puerto Rico, which alleged that the defendant had possessed with intent to distribute various controlled substances near a public housing facility, see 21 U.S.C. § § 841(a)(1), 860(a), and had possessed a firearm during and in relation to those crimes, see 18 U.S.C. § 924(c)(1)(A). On the

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cusp of trial, the defendant negotiated a plea agreement (the Agreement) with the government. In pursuance of the Agreement, he entered a guilty plea to a single count of possession of a firearm in furtherance of a drug-trafficking crime (an offense that carries a mandatory minimum sentence of 60 months' imprisonment). See id. § 924(c)(1)(A)(i). The other charges were later dismissed.

In the Agreement, the defendant acceded to the government's version of the facts. According to that account, federal agents and officers from the Puerto Rico Police Department (PRPD) were patrolling a known drug point located in the Sabana Abajo Public Housing Project in Carolina, Puerto Rico. At one point, an officer engaged in a chase encountered the defendant, who was masked and holding a .40 caliber Glock pistol in one hand and a backpack in the other. The defendant ditched the gun and tried to flee, but he was soon apprehended.

Upon inspection, the gun was found to be loaded with an extended magazine. The backpack was found to contain an additional extended magazine, varying quantities of assorted drugs, and $680 in cash.

The presentence investigation report (PSI Report) augmented the government's version of the facts.

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Pertinently, the PSI Report noted that, before fleeing, the defendant pointed his gun at the PRPD officer and threw the backpack at him. The Report also more fully inventoried the contents of the backpack; in addition to the extended magazine and cash previously mentioned, the backpack contained 119 small baggies of marijuana, 119 small baggies of cocaine, 262 packages of heroin, 38 packages of crack, and three pills of indeterminate origin.

At the disposition hearing and in conformity with the Agreement, the parties jointly recommended a 60-month sentence. The district court proceeded to chronicle the relevant facts, relying mainly on the PSI Report. The court added that the defendant, at the time of his arrest, had in his possession a notebook that memorialized various drug sales. When all was said and done, the court sentenced the defendant to a 120-month term of immurement (double the mandatory minimum).

After the district court handed down the sentence, defense counsel began to object to the court's reliance on the fact that the defendant had pointed his weapon at an officer. The court cut off counsel's argument and then denied his ...


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