FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Francisco A. Besosa, U.S. District Judge]
J. O'Connor, Jr. for appellant.
A. Schwartz, Assistant United States Attorney, with whom Rosa
Emilia Rodríguez-Vélez, United States Attorney,
and Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, were on brief, for
Howard, Chief Judge, Torruella and Kayatta, Circuit Judges.
KAYATTA, Circuit Judge.
Delgado-Sánchez ("Delgado") pled guilty to
one count of being a prohibited person in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). Delgado
now appeals his upwardly variant sentence of seventy-two
months in prison. He contends that his guidelines sentencing
range was miscalculated because the district court
erroneously found at least one of his prior convictions to be
for a "crime of violence." He also takes issue with
what he claims were procedural missteps at sentencing, and he
argues that the district court based his above-guidelines
sentence on factors that should not have been considered. For
the following reasons, we disagree and affirm Delgado's
sentence in full.
March 2015, police obtained a search warrant for
Delgado's residence after they observed him carrying an
AK-47 outside of his home. When officers arrived to execute
the search, Delgado allowed them inside, confessed that he
had the firearm, and told the officers where they could find
an additional magazine and ammunition. The police arrested
Delgado and seized the weapon, which was capable of automatic
fire and which was loaded with one magazine containing
twenty-nine rounds of ammunition. They also seized one more
magazine and sixteen additional rounds of ammunition. Delgado
pled guilty to being a prohibited person in possession of a
firearm in violation of 18 U.S.C. §
U.S. Probation Office's presentence investigation report
assigned Delgado a criminal history score of seven, the sum
of the criminal history points attributable to three prior
convictions. The first conviction, worth three criminal
history points under U.S.S.G. § 4A1.1(a), arose out of a
2008 arrest in San Lorenzo, Puerto Rico, for violating
Article 404 of the Puerto Rico Controlled Substances Law,
P.R. Laws Ann. tit. 24, § 2404. The second conviction,
also worth three criminal history points under U.S.S.G.
§ 4A1.1(a), arose out of Delgado's 2009 arrest in
Las Piedras, Puerto Rico. In that case, Delgado pled guilty
to one count of violating Article 198 of the Puerto Rico
Penal Code (Robbery) ("Article 198"), P.R. Laws
Ann. tit. 33, § 4826, and three counts of violating
Article 5.15 of the Puerto Rico Weapons Law (Discharging or
Pointing Firearms) ("Article 5.15"), P.R. Laws Ann.
tit. 25, § 458n(a). The presentence report explained
that "[a]ccording to certified court documents, "
Delgado and an accomplice "through the use of violence
and intimidation" and "using a dangerous weapon . .
. robbed $60.00 in cash . . . in the immediate presence of [a
person], " and Delgado "aimed [a] firearm at [the
person] and announced the robbery."
third conviction, worth one criminal history point pursuant
to U.S.S.G. § 4A1.1(e), followed a guilty plea to three
counts of robbery under Article 198 and three counts of
unlawfully discharging or pointing a firearm in violation of
Article 5.15. According to the presentence report,
"certified court documents" revealed that these
offenses arose out of two separate robberies and a shooting
in Yabucoa on March 24, 2009. First, Delgado "robbed a
cash register, $413 in cash and between 12 and 15 cigarette
boxes from [a store] through the use of violence and/or
intimidation in the immediate presence of [a person]. He also
robbed $177 in cash belonging to [another person] through the
use of violence and/or intimidation." Second, at 4:15
P.M., Delgado, "in possession of a black 9mm firearm,
" robbed a business of all of the proceeds from the
day's sales and some horse products totaling about $800.
During the robbery, Delgado asked an individual victim where
he could find the safe and instructed that individual to
"hit the safe in order to open it and give me all the
money." Finally, "[a]ccording to certified court
documents, " Delgado "shot 4 to 5 rounds into the
air from a black 9mm firearm" at 5:00 P.M.
presentence report also alerted the parties and the court
that probation was aware that Delgado had been arrested on at
least four other occasions.
the report indicated that Delgado had been arrested in San
Lorenzo in July 2008 and charged with two counts of violating
the Puerto Rico Weapons Law for possessing and carrying
without a license a loaded weapon with an obliterated serial
number. These charges, probation reported, were dismissed in
a preliminary hearing upon a finding of no probable cause.
the report stated that Delgado was arrested in Yabucoa in
November 2008 on grounds that (1) he committed two violations
of the Puerto Rico Controlled Substances Law, and (2) he
possessed two loaded firearms, one of which he used to rob a
bar of cash and goods "through the use of violence and
intimidation" in violation of the robbery statute and
the Weapons Law. The Controlled Substances Law charges were
dismissed for lack of probable cause, and, because Delgado
was detained for more than thirty days without a preliminary
hearing, the robbery and firearms charges were dismissed
pursuant to Rule 64(n)(5) of the Puerto Rico Rules of
Criminal Procedure, P.R. Laws Ann. tit. 34, App. II, §
the report detailed another November 2008 arrest in Yabucoa
on charges that Delgado violated two provisions of the
Weapons Law by carrying two loaded firearms without a
license, one of which had an obliterated serial number. These
charges were dismissed under the Commonwealth's Rule
64(n)(4), id. § 64(n)(4), because Delgado was
not tried within 120 days after his arraignment.
and finally, the report alerted the parties that probation
was aware that Delgado was facing pending charges stemming
from a December 2013 arrest. In that case, Delgado was
charged with discharging or pointing a firearm in violation
of Article 5.15 and unlicensed carrying/using of a firearm in
violation of Article 5.04 of the Weapons Law, along with
Aggravated Robbery in violation of Article 190(e) of the
Puerto Rico Penal Code. The report noted that Delgado's
trial on these charges was scheduled for early September
separate section of the presentence report, probation
concluded that Delgado should be subject to U.S.S.G. §
2K2.1(a)(3), which provides that when an individual is
convicted of an offense involving certain types of firearm
and was previously convicted of a felony "crime of
violence, " his base offense level is twenty-two.
Probation did not specify which of Delgado's previous
convictions served as the basis for the "crime of
violence" designation. Subtracting three levels based on
Delgado's demonstrated acceptance of responsibility,
probation proposed that Delgado's total offense level
should be set at nineteen.
nearly two months that passed between the date he was served
with the presentence report and the date he appeared for
sentencing, Delgado lodged no objections to the presentence
report. Rather, he submitted a sentencing memorandum limited
to urging the court to engage in a downward variance on
account of a chronic medical condition (the nature of which
is not germane to this appeal). When Delgado appeared before
the district court for sentencing on September 24, 2015, his
attorney informed the court that he had nothing to say on
Delgado's behalf "other than what I have expressed
in my sentencing memorandum." Delgado, too, declined the
court's offer to speak on the record.
district court determined that the presentence report's
calculations were correct: Delgado's base offense level
was twenty-two "because Mr. Delgado has been convicted
of possessing a firearm which is described in Title 26,
United States Code, Section 5845(a) after having been
convicted for a crime of violence, robbery and brandishing a
firearm during the robbery." With adjustments for
acceptance of responsibility, his total offense level was
nineteen. And he was in Criminal History Category IV with a
criminal history score of eight--the seven points described
above plus one additional point that Delgado earned when a
jury convicted him at some point in the intervening months on
the charges arising from his December 2013 arrest. The
advisory guidelines, the court found, thus recommended a
sentence of forty-six to fifty-seven months'
imprisonment, plus a fine and a term of supervised release.
district court then proceeded to consider the sentencing
factors in 18 U.S.C. § 3553(a). The court took note of
Delgado's age, education, employment, and history of drug
addiction. It also observed that Delgado had numerous
convictions and dismissed charges for firearms offenses, and
it expressed concern with Delgado's statement to
probation that he committed robberies because he "liked
to." Finding that, in light of these facts and the
Commonwealth's serious gun violence problem, a sentence
within the proposed guidelines range of forty-six to
fifty-seven months would not achieve the goals of punishment,
the district court sentenced Delgado to seventy-two
months' imprisonment followed by a three-year term of
supervised release. Delgado timely appealed.
"Crime of Violence"
lead argument is that the district court erred in calculating
his guidelines sentencing range because it improperly
classified one of his prior convictions as a conviction for a
"crime of violence" under U.S.S.G. §
2K2.1(a)(3). That provision advises courts sentencing
defendants convicted of certain firearms offenses to assign a
base offense level of twenty-two if "the defendant
committed any part of the instant offense subsequent to
sustaining one felony conviction of . . . a crime of
violence." A felony "crime of violence" is
"any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that . . . has as
an element the use, attempted use, or threatened use of
physical force against the person of another." U.S.S.G.
§ 4B1.2(a)(1); see also id. § 2K2.1 cmt.
n.1 (adopting definition of "crime of violence" in
§ 4B1.2). Physical force is "violent
force--that is, force capable of causing physical pain or
injury to another person." United Statesv.Martinez, 762 F.3d 127, 133 (1st Cir.
2014) (quoting Johnson v. United ...