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United States v. Vega-Rivera

United States Court of Appeals, First Circuit

August 2, 2017

UNITED STATES OF AMERICA, Appellee,
v.
JESÚS HUMBERTO VEGA-RIVERA, Defendant, Appellant.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Francisco A. Besosa, U.S. District Judge]

          Franco L. Pérez-Redondo, with whom Eric Alexander Vos, Federal Public Defender, Vivianne M. Marrero, Assistant Federal Public Defender, Supervisor, Appeals Section, and Liza L. Rosado-Rodríguez, Research and Writing Specialist, were on brief for appellant.

          Juan Carlos Reyes-Ramos, 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.

          Before Torruella, Thompson, and Barron, Circuit Judges.

          THOMPSON, Circuit Judge.

         Appellant Jesús Humberto Vega-Rivera ("Vega"), was charged with possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count One), and illegal possession of a machine gun, in violation of 18 U.S.C. §§ 922(o) and 924(a)(2) (Count Two). Pursuant to a plea agreement, Vega pled guilty to both counts. At sentencing, the district court declined to follow the plea agreement's recommendations, calculated the applicable Guidelines range at 46 to 57 months, and sentenced Vega at the top of the Guidelines range to 57 months' imprisonment. Vega appeals his sentence arguing that: (1) the district court improperly applied a two-level enhancement pursuant to United States Guidelines Manual ("U.S.S.G.") § 3C1.2 for reckless endangerment while fleeing from law enforcement; (2) the district court abused its discretion in imposing a curfew and electronic monitoring as conditions of his supervised release; and (3) that his sentence is substantively unreasonable. Finding his claims without merit, we affirm.

         Background

         Because this appeal follows a guilty plea, "we glean the relevant facts from the change-of-plea colloquy, the unchallenged portions of the presentence investigation report (PSI Report), and the record of the disposition hearing." United States v. Vargas, 560 F.3d 45, 47 (1st Cir. 2009). Around 4:00 p.m. on April 14, 2015, Guaynabo City Municipal Transit Police attempted to pull Vega over for a routine traffic stop on Road 177 in Puerto Rico. Instead of pulling over when instructed by police, Vega took off, resulting in a high speed chase that ended when Vega crashed his car into another vehicle in the intersection of Road 177 and Francisco Sein Street. Immediately following the accident, Vega took off from the vehicle on foot, carrying a Glock 23 .40 caliber pistol in his hand. While fleeing, Vega decided to ditch his gun, throwing the Glock pistol into a bank parking lot on the northwest corner of the intersection. After abandoning the gun, Vega continued to run from police, but he eventually surrendered at an adjacent gas station and was placed under arrest. This incident took place near the Inter American University of Puerto Rico and several businesses and restaurants in the area.

         Police later recovered the Glock pistol discarded by Vega in the bank parking lot. The handgun was loaded with a 22-round magazine filled with 20 bullets, modified to fire in fully automatic mode, and contained one round of ammunition already loaded in the chamber of the gun. During an inventory of Vega's car, police also found a bullet-proof vest and two additional Glock 22-round capacity magazines with 20 bullets in each. A records check of the Glock handgun showed that the gun was reported stolen in September 2009. Further investigation revealed that the Glock and accompanying ammunition were not manufactured in Puerto Rico and must have been shipped or transported in interstate or foreign commerce.

         Several hours after being taken into custody, Homeland Security Investigations agents interviewed Vega. At the interview, Vega waived his constitutional rights, including his right to have a lawyer present. Vega then told the investigators that three days prior to the incident, he had paid $400 for the Glock handgun already modified for fully automatic fire and the three accompanying ammunition magazines. Vega also told the special agents that he had just finished serving a three-and-a-half year prison sentence for narcotics. Further investigation confirmed that Vega had in fact been found guilty of possession of a controlled substance in July 2009.

         Vega was subsequently charged in a two-count indictment with possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count One) and illegal possession of a machine gun, in violation of 18 U.S.C. §§ 922(o) and 924(a)(2) (Count Two).[1] Vega eventually pled guilty to both counts pursuant to a plea agreement. Under the terms of the plea agreement Vega's base offense level was set at twenty, pursuant to U.S.S.G. § 2K2.1(a)(4). His base offense level was then increased by two levels because the firearm he possessed was stolen, pursuant to U.S.S.G. § 2K2.1(b)(4), and decreased three levels for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1. With these adjustments, Vega's total offense level was calculated at nineteen. The parties did not stipulate to Vega's Criminal History Category and agreed to a sentence within the applicable Guidelines range, depending on whatever the court determined Vega's Criminal History Category to be. Vega also agreed to waive his right to appeal if sentenced in accordance with the terms of the plea agreement.

         The Pre-Sentence Investigation Report ("PSR") was originally prepared in September 2015 and revised in October 2015. Like the plea agreement, probation calculated Vega's base offense level at twenty, added two levels because the firearm he possessed was stolen, and subtracted three levels for acceptance of responsibility. Unlike the plea agreement, however, probation also added a two-level enhancement for reckless endangerment during flight, pursuant to U.S.S.G. § 3C1.2, stating that Vega "recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer." Consequently, the PSR calculated Vega's total offense level at twenty-one. The PSR also calculated Vega's Criminal History Category at III because of two prior convictions for possession and conspiracy to possess with intent to distribute controlled substances in 2007 and 2008. With a total offense level of twenty-one and a Criminal History Category of III, the applicable Guidelines range was 46 to 57 months.

         Vega filed objections to the PSR, including in relevant part, an objection to the application of the two-level enhancement for recklessly creating a substantial risk of death or serious bodily injury. Vega argued that his conduct "did not create a risk to others of the degree required by the Guidelines, therefore his actions were not reckless." Vega also argued that he did not create a substantial risk of death or serious bodily injury while fleeing from police because "[h]e did not brandish nor discharge[] the firearm . . ., [n]o one was injured . . ., [h]e did not want to use [the firearm] and did not use [it], " and he did not run into any individuals while fleeing.

         At sentencing, Vega's counsel again argued that the two-level enhancement should not apply. Vega's counsel argued that "although [she] may concede that [Vega] acted recklessly and he created a risk, that risk had to be substantial; and [she] believe[d] that in this case [Vega's] actions . . . did not reach the level of substantial." The government agreed with defense counsel that Vega's actions did not rise to the level of creating a "substantial" risk. Probation, however, argued that the two-level enhancement was merited because: the defendant disobeyed the officers and fled at a high rate of speed and crashed into another vehicle. This was the location near a college when he actually fled the scene. He got out of the car after crashing the other vehicle, ran with a gun in his hand. [Vega later discarded the gun in a public place.] And this all happened ...


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