FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. José Antonio Fusté, U.S.
Alejandra Bird López for appellant.
M. Meconiates, 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 appellee.
Howard, Chief Judge, Thompson, and Dyk, [*] Circuit
THOMPSON, Circuit Judge.
Lasalle González ("Lasalle") pled guilty to
being a felon in possession of a firearm with an agreed
sentencing range of thirty to thirty-seven months. But after
the district court tallied all the points for what Lasalle
did with that firearm--burgling a house then shooting a
police officer as he tried to flee the scene--the court
landed on a sentence of ten years, the statutory maximum.
Lasalle calls foul, claiming the offense-level increases are
invalid, his sentence is unreasonable, and his lawyer should
have told him to back out of the deal. Finding only smoke but
no fire to his claims, we affirm.
October 15, 2014, a grand jury charged Lasalle, a convicted
felon, with knowingly and illegally possessing a firearm in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2),
and he pled guilty to the charge shortly thereafter. So, we
draw these facts from his plea agreement, the undisputed
sections of the presentence investigation report
("PSR"), and the transcripts of his change-of-plea
and sentencing hearings. United States v.
Rivera-González, 776 F.3d 45, 47 (1st Cir.
2015). Here's what happened.
to the plea agreement's Stipulation of Facts --these are
facts that Lasalle agrees the government could prove beyond a
reasonable doubt at trial--on October 8, 2014, two police
officers responded to a call that a "suspicious unknown
male" (who turned out to be Lasalle) was walking through
the caller's backyard. When Lasalle saw the officers, he
ran and the officers gave chase in different directions. One
of the officers yelled, "Police, do not move." The
second officer heard four or five gunshots, then found his
patrol partner lying on the ground wounded. When he saw
Lasalle approaching from the woods, the second officer
commanded Lasalle to stop; when Lasalle ignored the command
and continued to approach, the second officer shot Lasalle in
the leg. Both the wounded officer and Lasalle were
tells a more colorful tale. "Based on the Reports of
Investigation and all other available information," some
of the gunshots the second officer heard came from
Lasalle's illegally-possessed firearm: he stopped when
the first officer told him to, but rather than surrender his
gun, Lasalle shot the officer in the jaw and again in the
torso. Hours later, in an interview with a police officer at
the hospital, Lasalle said that he found the gun (a revolver
that police later discovered was stolen back in January 2014)
on the side of the road; admitted that he broke into a house
that night and stole some jewelry and frozen chicken because
he was hungry and had no money; and admitted that he
exchanged fire with the officers. (We note here that at the
change-of-plea hearing, the government confirmed that the
wounded officer would testify that it was Lasalle who shot
him.) Although the only charge before the federal grand jury
was illegally possessing the gun, Lasalle was charged in a
Puerto Rico state court with attempted murder and aggravated
burglary, among other crimes stemming from the events of that
night. Lasalle's lawyer reports that sometime after the
change of plea hearing but before his federal-court
sentencing, Lasalle pled guilty to aggravated assault in the
state court. The specifics of the resolution of the Puerto
Rico charges are unknown, but Lasalle received a ten-year
the plea agreement, the parties calculated that Lasalle's
total offense level was seventeen, and recommended the court
sentence Lasalle to thirty months in prison--a figure at the
bottom of the proposed Guidelines sentencing range of thirty
to thirty-seven months. The PSR calculated a significantly
higher sentencing range after bumping up his offense level by
twelve: (1) two more levels because the firearm was stolen,
(2) four more levels because Lasalle possessed the gun in
connection with another felony, and (3) six more levels
because Lasalle injured a law enforcement officer in
connection with the offense. All told, Lasalle's range
was 108 to 135 months, though the PSR reduced the upper
boundary of that range to 120 months because that is the
statutory maximum sentence for the offense. See 18
U.S.C. § 924(a)(2); U.S. Sentencing Guidelines Manual
§ 5G1.1(c)(1) (U.S. Sentencing Comm'n 2014)
objected to the PSR's Guidelines calculations on
essentially the same grounds he raises before us today (with
a couple of notable exceptions that we will get to below),
claiming the offense-level increases are invalid and their
application violated his Sixth Amendment and due process
rights. The judge reached the opposite conclusion. He then
sentenced Lasalle to ten years' imprisonment, to be
served concurrently with his ten-year state court sentence.
This appeal followed.
seeks safe harbor for an armada of arguments. He claims: (1)
the offense-level increase for using a stolen firearm is
invalid because it does not include an element of mens rea,
(2) all of the offense-level increases are invalid and
violate his Sixth Amendment and due process rights because
they are based on uncharged conduct not found by a jury or
proven beyond a reasonable doubt, (3) the sentence is
procedurally and substantively unreasonable, and (4) his
attorney was ineffective for failing to advise him to back
out of his plea agreement when it became clear that his
sentence would far exceed the recommended
range. Finding we cannot give Lasalle safe
harbor, we torpedo each of his arguments in turn.
Lasalle's first claim. He argues that the Sentencing
Guidelines' § 2K2.1(b)(4) two-level increase for
using a stolen firearm (what Lasalle calls the stolen-firearm
enhancement) is invalid because it does not include an
element of mens rea, meaning the court applied the
offense-level increase even though the government never had
to prove Lasalle knew his gun was stolen. (He claimed he
found it on the side of the road.) Lasalle says this flaw
invalidates the enhancement for three reasons: (1) it
violates his due process rights, (2) it is contrary to the
congressional intent expressed in the Gun Control Act of
1968, and (3) it is contrary to the purposes of the
Sentencing Reform Act of 1984. These are legal arguments that
we address de novo. See United States v.
Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013).
We break down and knock down each argument in turn.
first to his lead argument--that without an element of mens
rea, the application of the offense-level increase violated
his Fifth Amendment due process rights. Lasalle couches this
argument in more abstract language: "[T]hat an injury
can amount to a crime only when inflicted by intention,"
he points out, "is [a principle] as universal and
persistent in mature systems of law as belief in freedom of
the human will and a consequent ability and duty of the
normal individual to choose between good and evil."
Morissette v. United States, 342
U.S. 246, 250 (1952). But in the end it boils down to this:
Due process protects the right to fair notice, meaning notice
to an individual that his conduct does not conform to the
law. See Staples v. United States,
511 U.S. 600, 615-16 (1994); United States
v. Ford, 821 F.3d 63, 70 (1st Cir. 2016).
Generally, criminal statutes provide that notice by including
an element of mens rea, and so a mens-rea-less statute can
violate a defendant's due process rights.
Staples, 511 U.S. at 605-06; Ford, 821 F.3d
at 70. Lasalle says the same mens-rea reasoning applies to
his Guidelines enhancement, so the mens-rea-less enhancement
violates his due process rights, too.
government does not address Lasalle's due process notice
argument on his terms. Instead, it reasons that the
offense-level increase is valid by process of elimination:
the increase does not violate Lasalle's constitutional
rights because it does not alter the minimum or maximum
penalty for Lasalle's crime, create a separate offense
with a separate penalty, alter the burden of proof, or negate
Lasalle's presumption of innocence. See Alleyne
v. United States, 133 S.Ct. 2151, 2158
(2013); McMillan v. Pennsylvania,
477 U.S. 79, 87 (1986). So, the offense- level increase
neither creates a separate crime, nor functions as an element
of a crime. We take the government's argument to mean
that because the stolen-gun offense-level increase is
"fundamentally distinct" from a crime, it is no
different from any other factor a court may constitutionally
consider in formulating a defendant's sentence--mens-rea
requirement or not. United States v.
Murphy, 96 F.3d 846, 849 (6th Cir. 1996)
(distinguishing Staples, finding mens-rea-less
offense-level increase did not violate due process). Besides,
says the government, every other circuit that has considered
Lasalle's due process notice argument has rejected it,
and so it urges us to reject the argument, too.See United
States v. Thomas, 628 F.3d 64, 69 (2d
Cir. 2010); United States v.
Mobley, 956 F.2d 450, 454 (3d Cir. 1992)
(defendant's due process argument is "constitutional
wishful thinking"); United States v.
Singleton, 946 F.2d 23, 26 (5th Cir. 1991);
Murphy, 96 F.3d at 849; United States
v. Schnell, 982 F.2d 216, 220 (7th Cir.
1992); United States v. Goodell,
990 F.2d 497, 499 (9th Cir. 1993); United States
v. Richardson, 8 F.3d 769, 770 (11th Cir.
1993); see also United States v.
Taylor, 659 F.3d 339, 343-44 (4th Cir. 2011) (stolen
firearm offense-level increase not "inconsistent with
our take. Lasalle argues that the same due process notice
principles that apply to criminal statutes should apply to
the Sentencing Guidelines' enhancements, but he gives us
no reason to believe the two are analogous. The closest thing
to guiding authority he cites is Staples, 511 U.S.
at 605--a case about a criminal statute--where the
Court read an element of mens rea into a statute to avoid a
notice-based due process violation like the one Lasalle says
he suffered here. The statute at issue in Staples
prohibited the ownership of unregistered machineguns, but did
not require the government to prove the defendant knew his
gun was a machinegun to convict. Congress can omit an element
of mens rea when it makes clear that's what it intended
to do, the Court reasoned, but the Staples statute
was ambiguous on this point. And without an element of mens
rea, the statute "would impose criminal sanctions on a
class of persons whose mental state--ignorance of the
characteristics of weapons in their possession[, that they
were machineguns]--makes their actions entirely
innocent." Id. at 614–15. So, without a
mens-rea element, the defendant would not have notice that
his actions would break the law, and importantly, would have
no opportunity to conform his conduct to the law.
problem for Lasalle is that the Staples rationale
does not apply to the Sentencing Guidelines because the
Guidelines are advisory. That means that no matter the
defendant's Guidelines range, "the sentencing court
retains discretion to impose [an] enhanced [or reduced]
sentence" within the statutory range set by the
defendant's crime of conviction. Beckles
v. United States, 137 S.Ct. 886, 894
(2017); see Singleton, 946 F.2d at 26. This
Guidelines provision has no effect on that statutory
sentencing range; it only guides the "sentencing
court's quest to formulate a proper sentence."
Murphy, 96 F.3d at 849 (quoting Singleton,
946 F.2d at 26). The statute defining the crime limits the
sentencing court's discretion and provides "[a]ll of
the notice required" by the due process clause.
Beckles, 137 S.Ct. at 894.
makes sense--after all, by the time the Guidelines appear on
the horizon, the defendant has already been convicted of (or
like Lasalle, pled guilty to) a crime that itself includes an
element of mens rea. Indeed, "[c]riminal intent is an
element of the crime of possession of a gun by a convicted
felon, and this element was established by [Lasalle's]
guilty plea of knowing possession of the gun."
Singleton, 946 F.2d at 26 (emphasis omitted). So
unlike a mens-rea-less criminal statute, "the Guidelines
'may compound the punishment for the offense, but [they]
fall far short of criminalizing apparently innocent
conduct.'" United Statesv.Ray, 704 F.3d 1307, 1312 (10th Cir. 2013) (quoting
United Statesv.Saavedra, 523
F.3d 1287, 1289 (10th Cir. 2008)); accord Murphy, 96
F.3d at 848-49. This is no novel conclusion: as the