FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO HON. FRANCISCO A. BESOSA, U.S. DISTRICT JUDGE.
Mauricio Hernandez Arroyo and Law Offices of Mauricio
Hernandez Arroyo on brief for appellant.
Emilia Rodriguez-Velez, United States Attorney, Mariana E.
Bauza-Almonte, Assistant United States Attorney, and Julia M.
Meconiates, Assistant United States Attorney, on brief for
Lynch, Stahl, and Barron, Circuit Judges.
Francisco Severino-Pacheco ("Severino") appeals his
sentence for illegal possession of a machine gun. Following
Severino's guilty plea, the district court calculated a
Sentencing Guidelines ("Guidelines") range of 24 to
30 months. The district court ultimately imposed an
above-Guidelines sentence of 40 months, noting, inter alia,
that Severino had recklessly fired an automatic weapon in a
appeal, Severino challenges the procedural and substantive
reasonableness of his sentence. He contends that the district
court erred by relying on disputed facts and abused its
discretion in imposing an above-Guidelines sentence. Finding
no reversible error or abuse of discretion, we affirm.
this sentencing appeal follows from a guilty plea, we
"glean the relevant facts from the plea agreement, the
change-of-plea colloquy, the presentence investigation report
[PSR], and the transcript of [sentencing]." United
States v. Fernández-Cabrera,
625 F.3d 48, 50 (1st Cir. 2010).
February 10, 2017, the Puerto Rico Police Department
("PRPD") in San Juan received a call reporting a
speeding vehicle and gunfire in the Hato Rey Este Precinct.
PRPD officers in Hato Rey also heard gunfire and observed a
black vehicle speeding with its headlights turned off coming
from the direction of the gunfire. Those officers pursued the
vehicle and eventually stopped it, but the driver fled and
was never located. However, officers were able to apprehend
the vehicle's passenger, later identified as Severino.
conducted a safety frisk of Severino and discovered a .357
caliber firearm with an empty magazine hidden in his groin
area, along with a black holster, two cell phones, and $181
in cash. Officers secured the firearm and placed Severino
under arrest. In a separate search, officers recovered 14
shell casings from .357 caliber bullets from the area where
the gunfire was reported.
Severino was transported to the local precinct headquarters,
he was read his Miranda rights, and thereafter
refused to speak with PRPD officers. Later, special agents
from the Homeland Security Investigations ("HSI")
Public Safety Group arrived and again read Severino his
rights. After this recitation, Severino waived his rights and
voluntarily spoke with the agents.
told the HSI agents that he was with the driver of the
vehicle, whom he refused to identify, when he "decided
to fire a 'burst' from his firearm outside the [car]
window for no apparent reason." Severino added that he
"did not have the high capacity magazine fully loaded,
but he only had around 14 rounds inside it." He also
admitted to purchasing the gun for $1, 600, knowing that it
was modified to operate as a fully automatic weapon. Upon
examination, it was revealed that the weapon in question was
a firearm as defined by 18 U.S.C. § 921(a)(3)(A) and a
machine gun as defined by 26 U.S.C. § 5845(b). It was
further determined that the firearm travelled in or affected
interstate and/or foreign commerce.
April 4, 2017, Severino pleaded guilty to illegal possession
of a machine gun in violation of 18 U.S.C. § 922(o). His
base offense level was 20, which was subsequently reduced
three levels pursuant to U.S.S.G. § 3E1.1(a)-(b) for
acceptance of responsibility, yielding a final offense level
of 17. Severino's Criminal History Category was
determined to be I, ...