United States of America v. Norman Vallellanes-Rosa

United States Court of Appeals
For the First Circuit
No. 17-1541
UNITED STATES OF AMERICA,
Appellee,
v.
NORMAN VALLELLANES-ROSA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Thompson, Boudin, and Kayatta,
Circuit Judges.
Eric Alexander Vos, Federal Public Defender, Vivianne M.
Marrero, Assistant Federal Public Defender, Supervisor, Appeals
Section, and Liza L. Rosado-Rodríguez, Research and Writing
Specialist, on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Thomas F. Klumper, Assistant United States
Attorney, Senior Appellate Counsel, on brief for appellee.
September 20, 2018

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BOUDIN, Circuit Judge. In November 2014, Norman
Vallellanes-Rosa ("Vallellanes") committed multiple armed
robberies and carjackings around Bayamón, Puerto Rico. On November
13, Vallellanes and three others robbed a man at gunpoint before
stealing his car. On November 14, Vallellanes and another
individual participated in a separate armed and violent
carjacking. And finally, on November 26, Vallellanes and two other
individuals entered a man's home with a loaded gun and committed
yet another carjacking.
Vallellanes was charged in Puerto Rico Superior Court
for crimes committed during the first and third of these incidents;
Vallellanes pled guilty and received concurrent nineteen-year
prison sentences.
For the November 14 incident, Vallellanes was charged in
a two-count federal indictment. He pled guilty to carjacking with
the intent to cause death or serious bodily injury, 18 U.S.C.
§ 2119, and to carrying and brandishing a firearm during and in
relation to a crime of violence, id. § 924(c)(1)(A)(ii). On
appeal, Vallellanes challenges the sentences imposed for these two
offenses.
The total offense level adopted by the district court
for the section 2119 offense, coupled with Vallellanes's criminal
history category ("CHC") of III, produced a guidelines sentencing
range of seventy to eighty-seven months. The section 924(c)

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violation carried a mandatory minimum term of eighty-four months,
18 U.S.C. § 924(c)(1)(A)(ii), which was also the recommended
sentence under the guidelines, U.S.S.G. § 2K2.4(b).
Vallellanes did not challenge the guidelines
calculations (nor does he on appeal). Rather, defense counsel
proposed a sentence of eighty-four months for the section 924(c)
violation and requested a downward variant sentence of time
served--about twenty months--for the section 2119 violation.
Defense counsel pointed to Vallellanes's adverse
personal circumstances, including his father's leaving the family
when Vallellanes was six years old, his mother and stepfather's
drug use and their deaths, and his subsequent entry into the foster
care system. According to defense counsel, Vallellanes's criminal
behavior began when he went "astray" after a period of successful
participation in community extracurricular activities.
Defense counsel invoked Dean v. United States, which
held that a district court can consider the sentence imposed under
section 924(c) when determining a just sentence for the predicate
crime of violence or drug trafficking. 137 S. Ct. 1170, 1176-78
(2017). Given the mandatory minimum for Vallellanes's section
924(c) count, 18 U.S.C. § 924(c)(1)(A)(ii), and section 924(c)'s
requirement that any sentence imposed be "in addition to" (i.e.,
consecutive to) the punishment for the predicate crime, id.
§ 924(c)(5), Vallellanes's counsel urged that a term greater than

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time served for the carjacking offense would result in an overall
unreasonable sentence.
The government agreed with defense counsel's proposal
for a sentence at the mandatory minimum of eighty-four months for
the section 924(c) violation. But, given Vallellanes's criminal
history and the offense conduct, the government argued that a
downward variance for the section 2119 violation was not warranted.
The government cited the fact that Vallellanes was "on a crime
spree," having committed the instant offenses just a day after one
of the locally charged armed carjackings and robberies. The
government also explained that Vallellanes demonstrated "extreme
cruelty to the victim" during the instant carjacking: Over a
period of several hours, Vallellanes and his co-defendant
threatened, beat, and robbed the victim. At one point, the victim
was placed in the trunk of his car. Still, the government
suggested a mid-guidelines sentence of seventy-eight months for
the 2119 offense.
The district court imposed a sentence of eighty-four
months for the section 924(c) offense and seventy months for the
section 2119 offense, rejecting Vallellanes's request for a
downward variance (yet imposing a sentence lower than that
requested by the government). Given the dictates of section
924(c)(5), the sentences are to be served consecutively, resulting
in a total federal imprisonment term of 154 months.

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At the close of sentencing, defense counsel objected to
"the substantive unreasonableness of the sentence under the case
law as well as 18 U.S.C. § 3553." On appeal, Vallellanes claims
that this objection was sufficient to alert the district court to
the claimed procedural and substantive errors. Even if all errors
were spelled out at sentencing and reviewed for abuse of
discretion, Vallellanes's claims are without merit.
As an initial matter, the district court did not commit
the error recently denounced by the Supreme Court in Dean. Here,
there is nothing to suggest that the district court erroneously
believed it had to "ignore the fact that the defendant will serve
the mandatory minimum[] imposed" under section 924(c) when
calculating a just sentence for the carjacking offense. Dean, 137
S. Ct. at 1174, 1176-78.
Vallellanes's main argument is that the district court
failed to properly consider all of the section 3553(a) factors,
giving insufficient weight to Vallellanes's redeeming personal
characteristics and his nineteen-year local sentence.
But the district court twice stated that it had taken
into consideration all of the section 3553(a) factors, United
States v. Clogston, 662 F.3d 588, 592 (1st Cir. 2011), noting
aspects of Vallellanes's background, including his employment
record, history of drug use, and the fact that he was placed in
foster care at a young age. Additionally, the district court

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expressly found that Vallellanes's "lengthy imprisonment sentence
on an unrelated carjacking d[id] not justify a variance" for the
instant federal carjacking offense.
Vallellanes claims that the district court focused
chiefly on two of the section 3553(a) factors: the nature and
circumstances of the offense, 18 U.S.C. § 3553(a)(1), and the need
to protect the community from further crimes, id. § 3553(a)(2)(C).
A sentencing judge, however, need not expressly address or evaluate
each section 3553(a) factor one by one. United States v. Dixon,
449 F.3d 194, 205 (1st Cir. 2006).
Vallellanes's argument, then, is a "disagreement with
the court's weighing" of the section 3553(a) factors. United
States v. Madera-Rivera, 898 F.3d 110, 114 (1st Cir. 2018) (citing
Clogston, 662 F.3d at 593). Here, the fact that Vallellanes was
already sentenced to a lengthy prison term for separate and
distinct crimes was outweighed by the violent nature of the instant
carjacking offense and the corresponding need to protect the
public.
Vallellanes's final argument is that the aggregate 154-
month sentence is substantively unreasonable. Yet, the district
court provided a "plausible sentencing rationale" and the sentence
imposed--comprised of the minimum permissible sentence for the
section 924(c) offense and a sentence at the bottom of the
guidelines range for the section 2119 offense--is a "defensible

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result." United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008)
(citing United States v. Jiménez-Beltre, 440 F.3d 514, 519 (1st
Cir. 2006) (en banc)).
The overall 154-month sentence is substantial but so
were Vallellanes's crimes. Nothing compelled the judge in this
case to vary below the guidelines range for the federal carjacking
offense, and the sentence is affirmed.

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