United States v. Ernesto Ortiz-Álvarez

United States Court of Appeals
For the First Circuit
No. 18-1452
UNITED STATES,
Appellee,
v.
ERNESTO ORTIZ-ÁLVAREZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Torruella, Lynch, and Thompson,
Circuit Judges.
Mariángela Tirado-Vales on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Julia M. Meconiates, Assistant United
States Attorney, on brief for appellee.
April 19, 2019

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LYNCH, Circuit Judge. Ernesto Ortiz-Álvarez pled
guilty, under a plea agreement, to illegal possession of a machine
gun and to being a felon in possession of three firearms and
ammunition in violation of 18 U.S.C. § 922(o) and (g). The
district court sentenced Ortiz-Álvarez to sixty months'
imprisonment.
Ortiz-Álvarez argues on appeal that it was error for the
district court not to decide, before imposing its sentence, whether
the guidelines sentencing range (GSR) proposed in the presentence
report (PSR) or the guidelines calculation agreed to in the plea
agreement was correct. Instead, after reviewing the various
calculations, the district court based its sentence on the other
sentencing factors listed at 18 U.S.C. § 3553(a). On plain error
review, we see no error. And, in any event, we find no prejudice
in light of the district court's statements that the sentence would
have been the same under any of the proposed GSRs. We affirm.
I.
Puerto Rico Police Department officers conducting
surveillance at a location in Las Gardenias Public Housing Project
known for drug sales noticed a man carrying a large plastic bag
containing a green leafy substance. Believing that the substance
was marijuana, the officers pursued the man, who ran from them and
into an apartment.

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The police found the man in the apartment's living room
with the plastic bag, which the officers later confirmed did hold
marijuana, as well as heroin. As the officers were arresting the
man, the defendant, Ortiz-Álvarez, opened the door of one of the
apartment's bedrooms and emerged into the living room. Through
the open bedroom door, the officers saw what appeared to be two
firearms on top of the bedroom's dresser. They asked Ortiz-
Álvarez if he had a weapons permit, and after Ortiz-Álvarez
answered no, the officers entered the bedroom.
There, the officers recovered the two firearms seen on
the dresser: a loaded Glock .40 caliber pistol, Model 23, and a
loaded Glock .40 caliber pistol, Model 22. Both Glocks had been
modified to fire automatically as machine guns. The police also
noticed an AK-47 assault rifle leaning against the wall next to
the dresser. A fanny pack found nearby contained ammunition,
three radio scanners, and ledgers documenting drug transactions.
The officers arrested Ortiz-Álvarez, and a federal grand
jury charged him with possession of a machine gun and being a felon
in possession of firearms and ammunition in violation of 18 U.S.C.
§ 922(o) and (g). At the time, Ortiz-Álvarez was on state
probation. In 2009, Ortiz-Álvarez had been sentenced to multiple
years' probation for convictions for use of intimidation or
violence against public authority, weapon possession, and felony
attempted robbery.

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Ortiz-Álvarez pled guilty to the § 922(o) and (g)
charges under a plea agreement. The plea agreement stipulated
that Ortiz-Álvarez's prior state felony conviction for attempted
robbery was a crime of violence under the sentencing guidelines,
see U.S.S.G. §§ 2K2.1(a)(3); 4B1.2(a), and thus stated an elevated
base offense level (BOL) of 22. Both the plea agreement and the
PSR added to the BOL a two-level enhancement because the offense
involved three firearms, see id. § 2K2.1(b)(1), and then reduced
the BOL by three levels for timely acceptance of responsibility.
Pursuant to these calculations, the plea agreement stated an
ultimate total offense level (TOL) of 21.
The plea agreement did not determine a criminal history
category (CHC). Instead, the "parties . . . jointly
recommend[ed] an imprisonment sentence of 46 months," stating
further that "this recommendation is reasonable under the 18 U.S.C.
§ 3553(a) sentencing factors, regardless of the Guidelines' total
offense level and criminal history category determined by the court
at sentencing." That said, the TOL stipulated in the plea
agreement corresponded to a GSR of thirty-seven to forty-six months
if Ortiz-Álvarez's CHC were I and to a GSR of forty-one to fifty-
one months if the CHC were II.
The PSR's GSR of thirty-three to forty-one months
differed from the GSRs corresponding to the plea agreement's
stipulations. Its stipulation that Ortiz-Álvarez's prior felony

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conviction was a crime of violence had led to the plea agreement's
TOL of 21, but the PSR did not consider this prior conviction to
be a crime of violence, and so it calculated a BOL of 20 and a TOL
of 19. The PSR also found a CHC of II based on the prior offenses
and the fact that Ortiz-Álvarez was on probation for them when he
committed this offense.
Ortiz-Álvarez's sentencing memorandum stated no
objections to the PSR, did not question the plea agreement's
conclusion that the prior conviction was a crime of violence, and
requested the forty-six month sentence recommended in the plea
agreement.
At the sentencing hearing, the district court asked
defense counsel whether there was "an objection as to whether the
previous robbery was a crime of violence," and counsel answered,
"No." The district court then discussed with the prosecutor the
PSR's and the plea agreement's differing determinations about the
prior conviction. The prosecutor explained that the government
disagreed with the PSR's conclusion on the crime of violence issue
and added, based on the text of the plea agreement quoted above,
that "regardless of whether this Court agrees with the probation
officer's calculation under the guidelines or whether you accept
the stipulated calculation of the guidelines in the plea agreement,
the sentencing recommendation from the Government, and I
understand from sister counsel, would be the same in this case."

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Ortiz-Álvarez's counsel immediately confirmed that the defendant
stood by the plea agreement. "We are not objecting to the PSR,"
defense counsel stated, "[h]owever, we are recommending to
this . . . Court to accept the parties' recommendation of 46
months . . ., as . . . our recommendation . . . contemplates the
applicable sentencing factors of [§ 3553(a)]."
After reviewing the TOLs in the plea agreement and the
PSR and the CHC in the PSR, the district court stated "[b]ased on
the information that the Court has before it, the Court is not
going to determine which . . . of the guideline calculations is
correct." Later, the district court added that it did not "have
enough information" from the PSR and the other sources "to make a
decision as to whether" the prior conviction was a crime of
violence.
In explaining the sentence of sixty months, the district
court first considered the nature of the offense, including that
one of the weapons "was a military AK-47 assault rifle." "[A]
modern machine gun can fire more than one thousand rounds per
minute and allows the shooter to kill dozens of people in seconds,"
the district court emphasized. "Short of bombs, missiles and
biochemical agents, there are few weapons more dangerous than a
machine gun, and Mr. Ortiz had" more than one of them, the district
court added. The district court next stated it had "considered
the other sentencing factors set forth in [18 U.S.C. § 3553(a)]."

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It found that neither the GSR in the PSR nor the parties' "proposed
sentence . . . reflect[ed] the seriousness of the offense," nor
adequately "promote[d] respect for the law," "protect[ed] the
public from further crimes" by the defendant, nor "address[ed] the
issues of deterrence and punishment." The district court then
sentenced Ortiz-Álvarez to sixty months' imprisonment and three
years' supervised release.
Ortiz-Álvarez's counsel asked the district court which
GSR it had followed, and the district court reiterated that it had
"considered both, but . . . didn't particularly follow any one of
them." The district court stated that it would have imposed the
same sentence "[r]egardless of the guideline" calculations
applicable. When the prosecutor asked whether the district court
would have done so "based on its analysis of the 3553(a) factors,"
the district court said, "[t]hat is correct."
II.
Ortiz-Álvarez argues on appeal that the district court
committed a procedural error when it chose not to definitively
determine whether the GSR proposed in the PSR or the guidelines
calculation agreed to by the parties in the plea agreement was
correct. He also says that his sentence is substantively
unreasonable. We address these arguments in turn.

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Because Ortiz-Álvarez did not object to his sentence in
the district court, our review is for plain error. 1 United States
v. Soto-Soto, 855 F.3d 445, 448 (1st Cir. 2017); see also Fed. R.
Crim. Pro. 52(b). Ortiz-Álvarez must show that (1) there was "an
error that has not been intentionally relinquished or abandoned,"
(2) the error is "plain -- that is to say, clear or obvious,"
(3) the error "affected the defendant's substantial rights," and
(4) the error "seriously affects the fairness, integrity or public
reputation of judicial proceedings." Molina-Martinez v. United
States, 136 S. Ct. 1338, 1343 (2016) (internal quotation marks
omitted).
Ortiz-Álvarez's procedural argument fails at plain error
review's first step for a number of reasons. For one, Ortiz-
Álvarez has always agreed with the government that his prior
conviction was a crime of violence; he has raised no objections to
the stipulation in the plea agreement or to the plea's attendant
recommendation, either at the sentencing stage or on appeal. Cf.
United States v. Olano, 507 U.S. 725, 733 (1993) (explaining the
first prong of plain error review) . For another, the district
court acknowledged that the PSR's calculations differed from those
1 The standard of review applicable to unpreserved claims
of substantive error is "somewhat blurred," but Ortiz-Álvarez's
substantive challenge fails under either a plain error or an abuse
of discretion standard. United States v. Castrillon-Sanchez, 861
F.3d 26, 30 (1st Cir.) (quoting United States v. Ruiz-Huertas, 792
F.3d 223, 226 (1st. Cir. 2015)).

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agreed to by the parties, reviewed all of the calculations
presented, and ultimately saw no need to decide an immaterial
dispute about the GSR, concluding that a sixty-month sentence was
appropriate based on other considerations. The district court
thus did just what the federal sentencing regime set forth at
§ 3553(a) requires: "consider Guidelines ranges, see 18 U.S.C.
§ 3553(a)(4), but . . . tailor the sentence in light of other
statutory concerns . . . , see § 3553(a)." United States v.
Booker, 543 U.S. 220, 245 (2005). Given those features of the
sentencing, there was no "error that has not been intentionally
relinquished or abandoned." Molina-Martinez, 136 S. Ct. at 1343.
Ortiz-Álvarez cites Gall v. United States, 552 U.S. 38
(2007), but that case does not advance his argument. Dicta in
Gall likened "failing to calculate . . . the Guidelines range" to
the "significant procedural error" of "improperly calculating[]
the Guidelines range." Gall, 552 U.S. at 51. But, Gall's
"failing to calculate" language is not a reference to what the
district court did here but rather is a reference to failing to
"begin the[] [sentencing] analysis with the Guidelines and [to]
remain cognizant of them throughout the sentencing process," as
§ 3553(a) requires. Id. at 50 n.6. And, as we have said, in
sentencing Ortiz-Álvarez, the district court operated within
§ 3553(a)'s framework when it discussed the two possible TOLs and
attendant guidelines ranges but ultimately determined that the

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other § 3553(a) factors compelled a sentence of sixty months,
regardless of the applicable GSR. See id. at 49-50 (explaining
that a sentencing judge must discuss the guidelines and then
determine whether the § 3553(a) factors "support the sentence
requested by a party").
Ortiz-Álvarez is also not helped by cases finding plain,
procedural error in situations where a district court has made an
improper guidelines calculation. In those cases, defendants
attempted to show, and ultimately did show, that the district court
had "mistakenly deemed applicable an incorrect, higher Guidelines
range." Molina-Martinez, 136 S. Ct. at 1346; Rosales-Mireles v.
United States, 138 S. Ct. 1897, 1905-06 (2018); 2 United States v.
Taylor, 848 F.3d 476, 498-99 (1st Cir. 2017); United States v.
Hudson, 823 F.3d 11, 19 (1st Cir. 2016). In contrast, here, not
only did the district court never conclusively adopt the plea
agreement's higher TOL, but also Ortiz-Álvarez has never argued
that the plea agreement's higher TOL was erroneous.
Ortiz-Álvarez's embrace of the plea agreement, with its
stipulation that his prior state conviction was a crime of
violence, also distinguishes this case from United States v.
Tavares, 705 F.3d 4 (1st Cir. 2013). And, in any event, our result
2 Both the government's and the defendant's briefing fail
to call our attention to these and other pertinent Supreme Court
cases.

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here is consistent with Tavares. There, the sentencing court had
not "calculate[d] definitively the operative guidelines sentencing
range," and we held this was error, albeit harmless error, and
affirmed the sentence. Id. at 25. As Tavares made clear, in
failing to calculate Tavares' GSR, the district court had left
unresolved a significant disagreement between Tavares and the
government about the defendant's criminal history category. Id.
That specific procedural "lapse" did not arise or occur here. Id.
Here, there was no disagreement between the parties for
the district court to resolve. It was the probation office, in
the PSR, not the defendant or the government, that offered an
alternative, lower TOL calculation; and neither Ortiz-Álvarez's
sentencing memorandum nor his counsel's statements at the
sentencing hearing nor his brief on appeal defend the PSR's
calculation or take issue with the plea agreement's stipulation
that the prior conviction for Puerto Rico attempted robbery was a
crime of violence. (This absence of disagreement between the
parties, we note, surely contributed to the district court's
statement that it lacked sufficient information to draw a
conclusion on the crime of violence question.) No procedural
sentencing rule required the district court to issue what would
have been, in essence, an advisory opinion deciding whether Puerto
Rico attempted robbery is a crime of violence. Cf. United States
v. Hammes, 3 F.3d 1081, 1083 (7th Cir. 1993) (citing United States

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v. Fruehauf, 365 U.S. 146, 157 (1961)) (declining to resolve a
legal question under the guidelines where defendant agreed to
sentencing procedure).
Ortiz-Álvarez's argument that the district court's
choice not to conclusively adopt a GSR fails at plain error
review's first step. It also fails for another, independent
reason, at plain error review's third prong: the district court's
choice did not affect Ortiz-Álvarez's substantial rights. An
error affects substantial rights only if there is a "'reasonable
probability that, but for the error,' the outcome of the proceeding
would have been different." Molina-Martinez, 136 S. Ct. at 1343
(quoting United States v. Dominguez Benitez, 542 U.S. 74, 76
(2004)). And Ortiz-Álvarez's sentence would not have been
different had the district court settled on a GSR.
The district court stated that it would have imposed the
same sentence "based on its analysis of the § 3553(a) factors,"
regardless of the applicable GSR. On the record here, that
statement demonstrates "that the district court thought that the
sentence it chose was appropriate irrespective of the [applicable]
Guidelines range" and that adoption of a particular GSR would not
have changed Ortiz-Álvarez's sentence. Molina-Martinez, 136 S.
Ct. at 1346; see also Taylor, 848 F.3d at 498 (explaining that a
claim of prejudice is defeated by "a clear statement by the
[sentencing] court" that "diminish[es] the potential of the

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[Guideline Sentencing Range] to influence the sentence actually
imposed") (first and third alterations in original) (quoting
Hudson, 823 F.3d at 19). There was thus no prejudice. See Molina-
Martinez, 136 S. Ct. at 1346-47; see also Tavares, 705 F.3d at 25;
United States v. Marsh, 561 F.3d 81, 86 (1st Cir. 2009) (affirming
sentence based on similar statements by the sentencing court).
The district court's explanation of the reasons for the
sixty-month sentence further counters Ortiz-Álvarez's claim of
prejudice by "mak[ing] it clear that the judge based the sentence
he . . . selected on factors independent of the Guidelines" range.
Molina-Martinez, 136 S. Ct. at 1347; see also id. at 1346; Taylor,
848 F.3d at 498 (recognizing that a claim of prejudice can be
defeated by a district court's statements "that its sentence would
nevertheless be the same under an alternative analysis"). The
district court did discuss the guidelines calculations in the plea
agreement and the PSR, but it ultimately, and unmistakably,
justified the sentence imposed based on the nature of the offense
and the "other sentencing factors" at § 3553(a), not on those
guidelines calculations. See United States v. Henderson, 911 F.3d
32, 36 (1st Cir. 2018) (affirming sentence where sentencing
rationale was independent of possibly erroneous GSR). That
independent justification shows that the district court, while
cognizant of the dueling guidelines calculations, "intended to
untether" its sentence from the guidelines calculations presented

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to him (and any errors in them), refuting Ortiz-Álvarez's claim of
prejudice. 3 Hudson, 823 F.3d at 19.
The district court's rationale was also plausible, and
it led to a defensible sentence, and so the sentence is not
substantively flawed, as Ortiz-Álvarez argues. See, e.g., United
States v. Contreras-Delgado, 913 F.3d 232, 243 (1st Cir. 2019)
("The hallmarks of a substantively reasonable sentence are a
plausible sentencing rationale and a defensible result." (internal
quotation marks omitted)). Given that Ortiz-Álvarez was a
convicted felon on probation who possessed two pistols modified to
fire automatically and an AK-47 near drugs, the five-year sentence
he received fell within the "universe of reasonable sentences."
United States v. Rivera-González, 776 F.3d 45, 52 (1st Cir. 2015).
Affirmed.
3 The district court's statements and its justification of
the sentence on factors other than the guidelines calculations
distinguish this case from those finding prejudice in situations
where the district court adopted an erroneous guidelines
calculation. See generally Molina-Martinez, 136 S. Ct. at 1345-
46, 1347-48; see also Hudson, 823 F.3d at 19 (prejudice where the
sentencing court stated "I see no basis to vary from the [GSR],"
where that GSR was flawed); Taylor, 848 F.3d at 498-99 (prejudice
where the sentencing judge calculated sentence from an erroneous
criminal history score).

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