United States v. Heriberto Ortíz-Mercado

United States Court of Appeals
For the First Circuit
No. 17-1383
UNITED STATES,
Appellee,
v.
HERIBERTO ORTÍZ-MERCADO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Howard, Chief Judge,
Lynch and Kayatta, Circuit Judges.
Angela G. Lehman on brief, for appellant.
Julia M. Meconiates, Assistant United States Attorney, Rosa
Emilia Rodríguez-Vélez, United States Attorney, and Mariana E.
Bauzá-Almonte, Assistant United States Attorney, on brief, for
appellee.
March 29, 2019

-- 1 of 10 --

- 2 -
HOWARD, Chief Judge. In this appeal, Heriberto Ortíz-
Mercado challenges his sentence following his guilty plea to one
count of possession of a firearm by a convicted felon in violation
of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court
sentenced him to seventy-one months of incarceration plus three
years of supervised release. We affirm the sentence for the
reasons that follow.
On the night of June 26, 2015, Puerto Rico Police
Department officers observed Ortíz crossing the street while
carrying a firearm. After exiting their unmarked vehicle, the
officers approached Ortíz and identified themselves as police
officers. Ortíz started running and threw the firearm on the
ground, but in the process he fell to the ground and the officers
arrested him. The officers recovered a Glock model 26 pistol,
fully loaded with a drum magazine containing forty-nine rounds of
9mm ammunition plus a round in the chamber. The Glock was modified
with a chip to fire multiple rounds with a single pull of the
trigger. While patting down Ortíz, the officers also found two
loaded Glock magazines: one high-capacity magazine with thirty
rounds, and one with fifteen rounds. Ortíz was taken to the
precinct station, where he disclosed that he had been previously
convicted of a felony and was under the supervision of the U.S.
Probation Office at the time. A grand jury subsequently indicted
Ortíz on one count of violating 18 U.S.C. § 922(g)(1), as a

-- 2 of 10 --

- 3 -
convicted felon in possession of a firearm, and the government
sought forfeiture of the firearm and ammunition under 18 U.S.C.
§ 924(d)(1).
Ortíz ultimately decided to plead guilty without a plea
agreement, and the district court accepted the straight plea.
During the preparation of a presentence investigation report,
Ortíz explained to the probation officer that he bought the gun on
the street because he constantly feared for his life after an
incident in November 2014 during which he was shot eight times.
The shooting left him in a coma for three months. He also
expressed remorse for having the gun and acknowledged that he knew
it was illegal for him to possess it.
The probation officer determined that under U.S.S.G.
§2K2.1(a)(3) of the sentencing guidelines, Ortíz's base offense
level was 22, which was offset by three levels for acceptance of
responsibility under U.S.S.G. §3E1.1(a)-(b), for a total offense
level of 19. Shortly before the sentencing hearing, Ortíz filed
a sentencing memorandum requesting a downward departure from the
guidelines. In his memorandum and at the sentencing hearing,
Ortíz advanced a number of reasons why the court should impose a
sentence at or below the lower end of the guidelines range. In
particular, Ortíz sought a lower sentence in light of his medical
history, which included his difficult recovery from the shooting
incident, his having had Hodgkin's lymphoma, and his need for

-- 3 of 10 --

- 4 -
ongoing professional medical care. Overall, he argued that the
circumstances that led him to commit the offense, combined with
his medical circumstances, weighed in favor of sentencing him at
or below the low end of the guideline range.
At the sentencing hearing, the district court approved
a three-level reduction for acceptance of responsibility,
resulting in a guideline range of fifty-seven to seventy-one months
incarceration, and a supervised release term of at least one but
not more than three years. The court then considered Ortíz's
history, noting his two teenaged children, his limited education
and lack of employment, and his medical history, including the
cancer diagnosis and treatment, the 2014 shooting, and a twenty-
year history of substance abuse. At the same time, the district
court took into account that this was Ortíz's fourth conviction,
and that it occurred while he was on supervised release. In light
of those factors, and the nature and circumstances of the current
offense, the court determined that a sentence at the higher end of
the guideline range was sufficient but not greater than necessary,
and imposed the seventy-one month incarcerative term and three
years of supervised release.
On appeal, Ortíz asserts procedural error in the
district court's allegedly pro forma consideration of his request
for a shorter sentence. He submits that the court failed to
adequately explain why a sentence at the low end of the guidelines

-- 4 of 10 --

- 5 -
was not sufficient to achieve the legitimate objective of
sentencing in this case. He also argues that the length of his
prison term is substantively unreasonable.
Ordinarily, we review a sentence for reasonableness,
tantamount to a review for abuse of discretion. United States v.
Diaz-Rodriguez, 853 F.3d 540, 547 (1st Cir. 2017). However, when
a defendant fails to preserve a claim for procedural error in
sentencing, we review for plain error only. United States v.
Perretta, 804 F.3d 53, 57 (1st Cir. 2015).
Ortíz argues that he preserved his claims of procedural
and substantive error when he filed his sentencing memorandum
urging the court to impose a sentence at the lower end of the
guideline range. This argument flops, however, at least for the
procedural challenge, because he failed to object to the claimed
error at the sentencing hearing when the alleged error occurred,
even though he had a reasonable opportunity to do so. See Puckett
v. United States, 556 U.S. 129, 134 (2009) ("If a litigant believes
that an error has occurred . . . during a federal judicial
proceeding, he must object in order to preserve the issue."); cf.
United States v. Fernandez-Garay, 788 F.3d 1, 4 (1st Cir. 2015)
("A party's failure to spell out a claim [of error] in the district
court may be excused if he had no reasonable opportunity to do
so.") (citing Fed. R. Crim. P. 51(b)). After considering various
factors and explaining the sentence imposed, the district court

-- 5 of 10 --

- 6 -
asked Ortíz and the government whether they had any other matters
to raise before concluding the proceedings. To that invitation,
Ortíz's counsel expressly replied, "Nothing further." Plain error
review thus applies to the procedural challenge because Ortíz did
not preserve that claim of error below.
To establish plain error, Ortíz must show that three
conditions are satisfied: "First, there must be an error that has
not been intentionally relinquished or abandoned. Second, the
error must be plain—that is to say, clear or obvious. Third, the
error must have affected the defendant's substantial rights."
Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904 (2018)
(quoting Molina-Martinez v. United States, 136 S. Ct. 1338, 1343
(2016)). After finding those three conditions satisfied, we
should correct the error if it "seriously affects the fairness,
integrity or public reputation of judicial proceedings." Rosales-
Mireles, 138 S. Ct. at 1905 (quoting Molina-Martinez, 136 S. Ct.
at 1343). An error resulting in a longer sentence than necessary
ordinarily satisfies the latter inquiry. Id. at 1908-09, 1911.
Ortíz argues that the district court only summarily
addressed the sentencing factors under 18 U.S.C. § 3553(a), and
failed to adequately explain the chosen sentence, as required under
§ 3553(c). Failure to follow § 3553 results in prejudice
warranting reversal for plain error if the defendant shows a
reasonable probability that but for an obvious error the court

-- 6 of 10 --

- 7 -
would have imposed a more favorable sentence. See United States
v. Rodríguez, 731 F.3d 20, 25 (1st Cir. 2013). Ortíz's claim
falls well short of the mark, because there was no error, plain or
otherwise.
The district court stated that it had "considered all
Section 3553(a) factors," and that statement is entitled to some
weight. United States v. Davila-Gonzalez, 595 F.3d 42, 49 (1st
Cir. 2010). The court expressly noted Ortíz's personal and
criminal history, the nature of the offense, the type of weapon
involved, the amount of ammunition, and his status as a releasee
at the time. Ortíz claims that the district court did not address
his request for a downward departure under U.S.S.G. §5H1.4 based
on his medical condition and possible cancer recurrence. But that
is not so. During the sentencing hearing, counsel for Ortíz urged
the court to consider the possible recurrence of cancer, noting
that Ortíz recently had undergone diagnostic studies but the
results were unknown at sentencing. The district court concluded
that the record neither indicated a recurrence of cancer nor
reflected that his medical condition was being neglected while in
custody.
While a sentencing court should set forth enough to
satisfy an appellate court that it considered the parties'
arguments and had a reasoned basis for the sentence imposed, it
need not provide a lengthy explanation of a straightforward

-- 7 of 10 --

- 8 -
application of the guidelines to a particular case. Rita v. United
States, 551 U.S. 338, 356 (2007). Moreover, we take a pragmatic
approach and recognize that the district court's reasoning may be
inferred by comparing the parties' arguments with what the court
did. United States v. Rivera-Clemente, 813 F.3d 43, 50 (1st Cir.),
cert. denied, 136 S. Ct. 2427 (2016). An express dissection of
each of the § 3553(a) factors is not required. United States v.
Mangual-Rosado, 907 F.3d 107, 110 (1st Cir. 2018).
Here, the district court addressed the § 3553(a) factors
weighing in favor of the sentence imposed. In addition, the
district court expressly considered Ortíz's medical condition, but
found that it carried inadequate weight to tilt the scales in favor
of the shorter sentence he sought. We cannot therefore conclude
that the district court failed to give due consideration to the
§ 3553(a) factors or to explain its reasoning in arriving at its
sentence. As such, we find no reversible procedural error in
sentencing, much less satisfaction of the plain error standard.
Ortíz's claim of substantive error in his sentencing
similarly fails. He argues that the seventy-one month sentence
is unreasonable in these circumstances. In particular, Ortíz
presses that his offense was not violent nor was it connected to
his past drug involvement. He also argues that he possessed the
gun only because he feared for his life after he was shot multiple
times in 2014. These factors, however, do not stand in isolation,

-- 8 of 10 --

- 9 -
and the district court's decision considered other factors -- viz.,
Ortíz's recidivism and his having committed this crime while under
federal supervision -- that it found weighed in favor of the
sentence imposed.
Having previously recognized that an objection in the
district court may not be required to preserve a challenge to the
substantive reasonableness of a sentence, we assume, favorably to
Ortíz, that the abuse of discretion standard of review applies.
See United States v. Ruiz-Huertas, 792 F.3d 223, 228 (1st Cir.
2015). "A sentence is substantively reasonable so long as it
rests on a 'plausible sentencing rationale' and embodies a
'defensible result.'" Id. (quoting United States v. Martin, 520
F.3d 87, 96 (1st Cir. 2008)). Furthermore, a district court
sentence that falls within the guideline range deserves a
presumption of reasonableness. See United States v. Llanos-
Falero, 847 F.3d 29, 36 (1st Cir.), cert. denied, 137 S. Ct. 2229
(2017) (citing Rita, 551 U.S. at 347). In these circumstances,
Ortíz must present "fairly powerful mitigating reasons" and
persuade us that the district court unreasonably balanced the pros
and cons. Id. (citations omitted). The mitigating reasons that
Ortíz presents here were also advanced before the district court
at sentencing, and, as described above, the record belies his claim
that the district court overlooked them or gave them short shrift

-- 9 of 10 --

- 10 -
in determining his sentence. He thus fails to satisfy his burden
to prevail on the substantive challenge to his sentence.
Accordingly, we affirm Ortíz's sentence.

-- 10 of 10 --