FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Aida M. Delgado-Colón, U.S. District
L. Cortés Cortés for appellant.
Antonio L. Pérez-Alonso, Assistant United States
Attorney, with whom Rosa Emilia
Rodríguez-Vélez, United States Attorney,
Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, and Francisco A.
Besosa-Martínez, Assistant United States Attorney,
were on brief for appellee.
Howard, Chief Judge, Lipez and Barron, Circuit Judges.
HOWARD, CHIEF JUDGE.
Jonathan González-Barbosa appeals his
incarcerative sentence of 97 months, claiming that the
district court erred in calculating his Criminal History
Category under the Sentencing Guidelines, because a prior
conviction was "relevant conduct" and therefore not
for an offense that was separate from his present conviction.
González also challenges his sentence as procedurally
unreasonable based on sentence disparities and an inadequate
explanation by the judge.
no error by the district court, we affirm the sentence.
2010, González was indicted along with twenty-seven
others for conspiring to possess with intent to distribute
controlled substances within 1000 feet of the Columbus
Landing Public Housing Project in Mayaguez, Puerto Rico, in
violation of 21 U.S.C. §§ 846 and 860. The
indictment listed González as a seller in the
conspiracy, which lasted between 2002 and 2010.
González pled guilty and was sentenced to 60 months of
imprisonment followed by 8 years of supervised release.
serving his supervised release term, González was
arrested again in July 2016. This time, he and thirty-nine
others were indicted for violations of § 846 and other
crimes between 2010 and 2016. These other crimes included
aiding and abetting in the possession with intent to
distribute cocaine base, cocaine, and marijuana within 1000
feet of the Columbus Landing Public Housing Project, as well
as conspiracy to possess firearms in furtherance of a drug
trafficking offense. Again, González pled guilty.
the plea agreement, González was to be held
responsible for at least 500 grams but less than 2 kilograms
of cocaine. He also admitted to acting as a drug point owner
and a runner in the conspiracy. The parties agreed that he
would be assigned a base offense level (BOL) of 24, as well
as a two-level enhancement for protected location, a
two-level enhancement for a leadership role in the offense,
and a three-level reduction for acceptance of responsibility
for a total offense level (TOL) of 25. As provided in the
Sentencing Guidelines, González's guideline
sentencing range (GSR) would be determined by taking his TOL
and his Criminal History Category (CHC) and plotting them on
the guidelines table. The plea agreement made no stipulation
as to González's CHC, but made a joint
recommendation of 72 months' imprisonment "if
Defendant's CHC is I to III."
Presentence Investigation Report (PSR) prepared by the United
States Probation Office mirrored the plea agreement's
guidelines calculation, but added a two-level enhancement for
the foreseeable possession of a firearm during the offense,
as provided by U.S.S.G. § 2D1.1(b). The PSR therefore
assigned González a TOL of 27. With respect to
González's CHC, the PSR added three points for his
prior conviction relating to the 2002-2010 conspiracy and two
points because the instant offense was committed during a
term of supervised release. Consequently, the PSR recommended
a CHC of III. With a TOL of 27 and CHC of III, the PSR
calculated the GSR to be 87 to 108 months.
objected to the PSR's firearms enhancement, arguing that
the TOL should be 25 as stipulated in the plea agreement. He
also asserted that his participation in the conspiracy was
limited, because he was incarcerated for most of the duration
of the 2010-2016 conspiracy. González made no other
objections to the PSR. The U.S. Probation Officer rejected
González's objections and left the PSR sentencing
González's sentencing hearing, the district court
first imposed a sentence of 18 months' imprisonment for
the violation of supervised release. Turning to the sentence
for the 2010-2016 conspiracy, the court noted that it had
reviewed the plea agreement, the PSR, González's
sentencing memorandum, and his objection to the firearms
enhancement. After the court heard arguments about the
firearms enhancement and the recommended sentence of 72
months, it accepted the PSR-recommended guideline sentencing
range of 87 to 108 months' imprisonment. After discussing
the various § 3553(a) factors, the ...