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United States v. Severino-Pacheco

United States Court of Appeals, First Circuit

December 18, 2018

UNITED STATES OF AMERICA, Appellee,
v.
FRANCISCO SEVERINO-PACHECO, Defendant, Appellant.

          APPEAL 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.

          Rosa 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 appellee.

          Before Lynch, Stahl, and Barron, Circuit Judges.

          STAHL, CIRCUIT JUDGE.

         Defendant-Appellant 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 neighborhood.

         On 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.

         I. Factual Background

         Because 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).

         On 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.

         Officers 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.

         After 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.

         Severino 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.

         II. Procedural Background

         On 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, ...


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