FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO Hon. Francisco A. Besosa, U.S. District Judge
Elizabeth Lee on brief for appellant.
Elizabeth H. Danello, Attorney, Appellate Section, Criminal
Division, United States Department of Justice, Rosa E.
Rodríguez-Vélez, United States Attorney, John
P. Cronan, Acting Assistant Attorney General, Thomas F.
Klumper, Acting Chief, Appellate Division, and Laura G.
Montes-Rodriguez, Assistant United States Attorney, on brief
Howard, Chief Judge, Boudin and Lynch, Circuit Judges.
BOUDIN, CIRCUIT JUDGE.
Robles-Pabon ("Robles"), on a plea of guilty in the
district court, was convicted of conspiracy to possess with
intent to distribute cocaine and marijuana, 21 U.S.C.
§§ 846, 841(a)(1), and 841(b)(1)(C), and possession
of a firearm in furtherance of a drug-trafficking crime, 18
U.S.C. § 924(c)(1)(A). The district court sentenced him
to twenty-one months on the first count and seventy-two
months on the second, the latter to be served after the first
sentence, for a total of ninety-three months. He now appeals
to contest his sentences.
December 17, 2015, federal agents searched a house in
Arecibo, Puerto Rico, and found Robles hiding in a closet.
The agents found drugs, currency, cell phones, AK-47
ammunition, high capacity magazines, and a chip to modify a
Glock firearm. Searching a car parked at the residence,
agents found Robles' passport and a loaded Glock pistol,
among other things. Neither search is contested on this
jury indicted Robles on six counts, but on July 22, 2016,
Robles agreed with the government to plead guilty to the two
counts already described. The plea agreement contained
guideline calculations, one of which endorsed a decrease by
two levels for acceptance of responsibility, U.S.S.G. §
3E1.1(a), ignoring the possibility of a three-level reduction
under the governing guideline, U.S.S.G. § 3E1.1(b). The
district court entered the guilty plea and a presentence
investigation report followed.
November 4, 2016, the district judge at the sentencing
hearing, relying on the 2015 version of the guidelines,
approved a two-level reduction for acceptance of
responsibility and imposed the sentences set forth above.
This appeal followed, asserting as errors the alleged
ineffective assistance of trial counsel in failing to secure
the three-level reduction, error by the trial judge in
ignoring the potential three-level reduction, and various
claimed infirmities in the district court's choice of
response, the government parries. It denies that Robles'
attorney can on this record be shown to be ineffective but
says that "because Robles could establish attorney
ineffectiveness in a proceeding under 28 U.S.C. § 2255,
" this court "should vacate the sentence and remand
to allow the government to file a Section 3E1.1(b) motion,
" presumably to secure the extra level reduction and
allow Robles to be resentenced.
the joint agreement that Robles deserves the extra level
decrease and resentencing, and seeing no reason to disagree,
we turn to Robles' further claims, which are two. The one
merely repeats the request for a third level decrease under a
different heading (judge error as opposed to counsel error)
but the other is a multipart attack on the prior sentencing
on grounds that bear upon any further sentencing proceeding
of this defendant.
the district court, as expressed in the sentencing colloquy,
intended to vary upward from the guideline sentence, although
the judge and the parties would not necessarily share the
same view of what would constitute a proper guidelines range.
The attacks on the upward variance are that the court relied
on unsubstantiated facts, failed to explain adequately the
variance and did not "individualize" Robles'
sentence as required in Gall v. United States, 522
U.S. 38 (2007), and other precedents including our own,
e.g., United States v. Vázquez, 854
F.3d 126, 130 & n.2 (1st Cir. 2017).
counsel argues that in varying upward, the district court
relied importantly on its belief that the murder rate in
Puerto Rico had decreased significantly because of a joint
firearms initiative. The district court referred to such a
belief, but taken as a whole, its rationale was far more
straightforward: that Robles was an armed and dangerous drug
dealer whose criminal behavior should be strongly discouraged
by an upward variance.
set of cases, this court has upheld upward variances on
roughly similar facts and, in a leading case, focused on the
requirement that a variance be reasonable and found it
satisfied. See United States v.
Rivera-González, 776 F.3d 45, 50-51 (1st Cir.
2015) (Selya, J.); see also United States v.
Garay-Sierra, 885 F.3d 7, 15-16 (1st Cir. 2018)
(Thompson, J.); United States v. Fuentes-Echevarria,
856 F.3d 22, 25-26 (1st Cir. 2017) (Howard, C.J.);