APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. José Antonio Fusté, U.S. District Judge.
Heather Clark, with whom Law Office of Heather Clark was on brief, for appellant.
Francisco A. Besosa-Martínez, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.
Before Lynch, Selya and Lipez, Circuit Judges. LIPEZ, Circuit Judge, dissenting.
SELYA, Circuit Judge.
In this sentencing appeal, defendant-appellant Héctor Cortés-Medina insists that his 168-month sentence is both procedurally flawed and substantively unreasonable. After careful consideration, we affirm the sentence.
This appeal has its roots in an indictment returned by a federal grand jury sitting in the District of Puerto Rico. The indictment alleged that the defendant served as an " enforcer" for a drug-trafficking ring and charged him as a participant in a conspiracy to possess with intent to distribute controlled substances within 1,000 feet of a protected location. See 21 U.S.C. § § 841(a)(1), 846, 860.
In due course, the defendant entered into a non-binding plea agreement (the Agreement) with the government. The Agreement provided that, in exchange for his guilty plea to the conspiracy charge and to a related forfeiture allegation, the government would recommend a 121-month prison term; provided, however, that the defendant's criminal history category (CHC) was IV or lower. The district court accepted the plea, and the probation office prepared a presentence investigation report (PSI Report). Neither side objected to anything contained in the PSI Report, which (among other things) recommended a series of guideline calculations culminating in a total offense level of 30, a CHC of IV, and a guideline sentencing range (GSR) of 135 to 168 months.
At the disposition hearing, the government recommended the agreed 121-month sentence, even though that sentence was below the nadir of the GSR. The district court heard statements from defense counsel and the defendant himself, and the
court acknowledged the parties' joint sentencing recommendation. The court then engaged in a dissection of the defendant's criminal history.
To begin, the court examined the four convictions on which the defendant's CHC was premised. It then catalogued several arrests that had terminated either in acquittals or in dismissals. These included two charges for first-degree murder, two charges relating to destruction of evidence, and an assortment of charges for drug and firearm violations. Noting that none of these charges had resulted in any punishment, the district court expressed frustration. The court said: " This is what I just don't understand, how ...