APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Francisco A. Besosa, U.S. District Judge.
Eric Alexander Vos, Federal Public Defender, District of Puerto Rico, Vivianne M. Marrero, Assistant Federal Public Defender, Supervisor, Appeals Section, and Liza L. Rosado-Rodriguez, Research and Writing Specialist, on brief for appellant.
Rosa Emilia Rodriguez-Velez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Susan Z. Jorgensen, Assistant United States Attorney, on brief for appellee.
Before Lynch, Lipez, and Kayatta, Circuit Judges.
LYNCH, Circuit Judge.
Marcelino Guzman-Montanez was convicted of being a felon in possession of a firearm after being arrested in circumstances that, as the district court found, suggested an " obvious intention of committing an armed robbery." In a previous appeal, we vacated one count of conviction and remanded for resentencing.
United States v. Guzmá n-Montañez, 756 F.3d 1, 12
(1st Cir. 2014). On appeal from resentencing, Guzman-Montanez challenges the procedural and substantive reasonableness of his upwardly variant sentence. We affirm.
The facts underlying this case are set forth in detail in our previous opinion. Id. at 3-5. On March 14, 2012, a restaurant owner in Bayamón, Puerto Rico, alerted the police after turning away two suspicious customers, one of whom appeared to be carrying a gun. Descriptions of the men and their car were broadcast over police radio in connection with the event, characterized as an attempted robbery. Police patrolling the area saw two men who matched the description enter a fast food restaurant, with the man later identified as Guzman-Montanez carrying a black pistol in his waistband. When marked police cars arrived, Guzman-Montanez quickly left the food-ordering line and entered the bathroom. As Guzman-Montanez left the bathroom, police entered the restaurant and apprehended both men. Guzman-Montanez was no longer carrying a gun in his waistband at that time, but the police searched the bathroom and found a loaded pistol in the diaper changing station.
On March 28, 2012, Guzman-Montanez was indicted on one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and one count of possession of a firearm in a school zone, in violation of 18 U.S.C. § 922(q)(2)(A). On July 18, 2012, Guzman-Montanez was convicted of both counts after a three-day jury trial.
The presentence report (PSR) grouped the two counts into a combined offense level because the counts involved the same victim and the same act or transaction. U.S.S.G. § § 3D1.1, 3D1.2(a). The PSR recommended a combined base offense level of 14, pursuant to U.S.S.G. § 2K2.1(a)(6). A two-level enhancement for the stolen firearm yielded a total offense level of 16. U.S.S.G. § 2K2.1(b)(4)(A). The PSR noted that Guzman-Montanez had been convicted in 2001 of illegal appropriation of a vehicle, robbery, carjacking, and unlicensed possession of a firearm, and that he had served a suspended sentence. However, those prior convictions counted for zero criminal history points because the sentences for those prior convictions were imposed more than ten years before the instant offense. U.S.S.G. § 4A1.2(e). Based on a total offense level of 16 and a criminal history category of I, the guideline sentencing range was 21 to 27 months of imprisonment. The government sought an upward departure or variance to produce a sentence of 72 months of imprisonment. Citing Guzman-Montanez's criminal history and the nature of the offense, the district court imposed an upwardly variant sentence of 60 months of imprisonment.
On June 13, 2014, we reversed the conviction on count two on the basis of insufficient evidence that Guzman-Montanez knew or reasonably should have known that he was in a school zone. Guzmá n-Montañez, 756 F.3d at 10-12. We affirmed the ...