United States of America v. Heissan Hernández-Ramos

United States Court of Appeals
For the First Circuit
No. 17-1779
UNITED STATES OF AMERICA,
Appellee,
v.
HEISSAN HERNÁNDEZ-RAMOS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]
Before
Howard, Chief Judge,
Boudin and Barron, Circuit Judges.
Alex Omar Rosa-Albert on brief for appellant.
Francisco A. Besosa-Martinez, Assistant United States
Attorney, Rosa Emilia Rodriguez-Velez, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, on brief for appellee.
October 15, 2018

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BOUDIN, Circuit Judge. Heissan Hernández-Ramos
("Hernández") appeals to contest his sixty-month prison sentence
following a guilty plea entered in district court to two offenses:
being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1),
and unlawfully possessing a machine gun, id. § 922(o).
On September 1, 2016, Puerto Rico police officers were
patrolling in the vicinity of the Luis Llorens-Torres Public
Housing Project in San Juan. As the officers approached a group
gathered near a known drug distribution point, one man, Hernández,
pulled a firearm from his waist and fled, throwing down the
firearm. The police captured Hernández and recovered the gun,
which proved to have been modified to fire as an automatic weapon.
Hernández pled guilty to both counts. Based on a total
offense level of seventeen and a criminal history category ("CHC")
of III, the presentence report stipulated a guidelines
imprisonment range of thirty to thirty-seven months. At
sentencing, the government sought a sentence at the top of the
guidelines range. The government argued that Hernández had
previously been convicted of crimes involving weapons and
threatening public officers, serving time for one such crime, and
that messages on his cell phone suggested his involvement in
selling drugs and high-capacity firearm magazines. Defense
counsel requested a twenty-four-month sentence, a six-month
downward variance.

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The district court, in no way bound by the parties'
sentencing recommendations whether the parties agree or differ,
United States v. Rivera-González, 776 F.3d 45, 51 (1st Cir. 2015),
varied upward based on the severity of the offense and related
conduct, Hernández's criminal history and past behavior, and the
need to deter Hernández and other individuals from committing
firearms offenses. The court noted Puerto Rico's continuing
experience with gun violence, a permissible sentencing
consideration provided the court does not "ignore [a defendant's]
individual circumstances." United States v. Laureano-Pérez, 892
F.3d 50, 52 (1st Cir. 2018).
The court sentenced Hernández to sixty months in prison
to be followed by three years of supervised release. The court's
summary of its reasoning was as follows:
[T]his is an individual who continues to threaten
other individuals, has had weapons when he's
threatened others, and has . . . semiautomatic or
a machine gun-type firearms in his possession, he's
carrying them. He's also distributing controlled
substances or trafficking firearms. Even though
he's not charged with that here, it is something
the Court can consider. So, I find in this
particular case an upward variance is warranted.
And I find that given all the factors that I just
mentioned along with the community geographic
factors, the recidivism he has shown, the type of
firearm he was carrying, and also the fact that his
cell phone reveals that he is selling minor amounts
of drugs and also trafficking or attempting to
traffic ammunition, the Court finds that a sentence
of 60 months is sufficient but not greater than
necessary.

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Defense counsel objected to the sentence as
"procedurally unreasonable." The court answered: "What you're
talking about is 'substantively unreasonable.' Object to both and
preserve it for the record." Defense counsel replied, "Right.
Substantively and procedurally unreasonable . . . for the record."
On appeal, Hernández's sole claim is that the variant
sentence was excessive and thus substantively unreasonable.
Reviewing for abuse of discretion, Gall v. United States, 552 U.S.
38, 56 (2007), this case is a clear affirmance.
Hernández repeatedly points out that the district
court's sentence doubled the lower end of the guidelines range,
but the more pertinent figure for our analysis is the distance
between the upper end of the guidelines range and the imprisonment
term. When examining this variance, we recognize that "a major
departure should be supported by a more significant justification
than a minor one." Id. at 50.
The upper end of the guidelines range was just over three
years, and Hernández received a five-year sentence for two offenses
for which Congress in each case fixed ten years as the statutory
maximum, 18 U.S.C. § 924(a)(2), making difficult a claim that the
sentence here was "outside the universe of reasonable sentences .
. . ." United States v. Paulino-Guzman, 807 F.3d 447, 451 (1st
Cir. 2015). What matters more than generalities are Hernández's
own conduct and history as well as the force of the district

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court's reasoning.
Hernández contends that because his offense conduct and
personal characteristics were already considered by the Probation
Officer in calculating the guidelines sentence, the judge double-
counted the same factors in relying on them to justify the
variance.
The offense conduct and the defendant's criminal history
form the foundation of most guidelines calculations. Hernández's
double-counting argument, if embraced, would render every variance
based on offense conduct and the defendant's characteristics
unreasonable. Accordingly, this court has rejected this argument,
permitting consideration of a defendant's prior criminal history
in both the CHC determination and the section 3553(a) variance
analysis. United States v. Maisonet-González, 785 F.3d 757, 763-
64 (1st Cir. 2015).
Hernández also says that the district court assigned too
much weight to community factors and failed to individually tailor
his sentence. The sentencing transcript shows that the court
discussed Hernández's age, education, family background, and
escalating criminal history--including incidents in which he had
threatened law enforcement officers--before analyzing the
seriousness of the offense and the need to promote deterrence.
Past decisions have upheld similar variances. Laureano-Pérez, 892
F.3d at 52–53 (collecting cases). The variance, although

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substantial, was lawfully imposed and adequately explained.
Finally, Hernández argues that the government stood by
its recommendation of a sentence within the guidelines range, so
it would be "unbecoming" for the government to defend the variance
on appeal. This, however, is quite common: "As an appellee, the
government is tasked, in effect, with defending the district
court's judgment when a criminal defendant appeals." United
States v. Carbajal-Váldez, 874 F.3d 778, 786 (1st Cir. 2017). And
no matter the propriety of the government's defense, the outcome
is our responsibility.
Affirmed.

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