11-1244, 11-1245 United States v. Leonel David Maldonado-Escarfullery

United States Court of Appeals
For the First Circuit
Nos. 11-1242,
11-1244,
11-1245
UNITED STATES,
Appellee,
v.
LEONEL DAVID MALDONADO-ESCARFULLERY,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin and Lipez, Circuit Judges.
Elaine Mittleman on brief for appellant.
Rosa Emilia Rodriguez-Velez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, and Julia M.
Meconiates, Assistant United States Attorney, on brief for
appellee.
August 20, 2012

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LYNCH, Chief Judge. On February 2, 2011, the district
court, at a consolidated hearing, sentenced defendant Leonel David
Maldonado-Escarfullery to seventy-two months' imprisonment pursuant
to the defendant's guilty pleas on firearms charges in three cases.
Maldonado-Escarfullery now challenges that sentence. We affirm.
Because this sentencing appeal follows a guilty plea, we
draw the facts from the unchallenged portions of the presentence
investigation report and the transcript of the sentencing hearing.
United States v. Madera-Ortiz, 637 F.3d 26, 28 (1st Cir. 2011).
There were three criminal firearms schemes, resulting in
three prosecutions. In December 2008 and January and March 2009,
Maldonado-Escarfullery offered to ship firearms from Florida to an
associate in Puerto Rico for sale at a profit. Maldonado-
Escarfullery, who was an employee of FedEx at the time, would
purchase the firearms in Florida and ship them to Puerto Rico by
FedEx. On March 4, 2009, FedEx personnel in Puerto Rico discovered
three packages containing firearms and contacted the local office
of the Bureau of Alcohol, Tobacco, and Firearms (ATF). ATF agents
then conducted a controlled delivery of the firearms to Maldonado-
Escarfullery's associate, who confessed and implicated the
defendant. Based on these activities, on March 25, 2009, a federal
grand jury returned a four-count indictment charging Maldonado-
Escarfullery with, inter alia, shipment of firearms in interstate
commerce to someone other than a licensed dealer, importer,
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manufacturer or collector, in violation of 18 U.S.C. § 922(e)
("Case 09-109").
In the second scheme, from August 2008 through March
2009, Maldonado-Escarfullery participated in a separate plan to
ship firearms to another associate in Puerto Rico. Before March
2009, Maldonado-Escarfullery had delivered approximately five
packages containing firearms to this associate; during March 2009,
he delivered two more packages containing a total of fourteen
firearms. On August 14, 2009, a federal grand jury returned a
five-count superseding indictment charging Maldonado-Escarfullery
with, inter alia, conspiracy to deal firearms in interstate
commerce, in violation of 18 U.S.C. §§ 371 and 922(a)(1)(A) ("Case
09-143").
Maldonado-Escarfullery was arrested in Florida by ATF
agents on April 23, 2009. He agreed to cooperate with the
government, including by testifying against his coconspirators
before a grand jury, and he was released on a $50,000 bond. On
August 26, 2009, at a change of plea hearing, Maldonado-
Escarfullery pled guilty to one count in Case 09-109 and one count
in Case 09-143.
Significantly, while he was free on bond, had signed a
cooperation agreement, and was awaiting sentencing, Maldonado-
Escarfullery broke the law again. He shipped firearms from Florida
to Puerto Rico. He was arrested in Florida in October 2010, and
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his probation officer advised the court of the arrest on October
19, 2010. Maldonado-Escarfullery was transferred from Florida to
Puerto Rico to appear at a show cause hearing on November 4, 2010,
where his bail was revoked. On November 30, 2010, Maldonado-
Escarfullery pled guilty to one count of dealing firearms in
violation of 18 U.S.C. § 922(a)(1)(A) ("Case 10-447").
On February 2, 2011, the district court in Puerto Rico
held a consolidated sentencing hearing in the three cases. Under
the plea agreements, the government recommended sentences of 12
months and one day for Case 09-109; 30 months for Case 09-143, to
run concurrently with the sentence for Case 09-109; and 57 months
for Case 10-447, with no recommendation as to whether that sentence
should run concurrently with the others. Maldonado-Escarfully
maintained that all three sentences should run concurrently. This
argument would have meant a maximum term of imprisonment of 57
months.
The court calculated the Sentencing Guidelines range by
grouping the counts of conviction together, since they involved two
or more acts connected by a common criminal objective or scheme.
U.S.S.G. § 3D1.2(b). The court determined that the base offense
level was 14, id. § 2K2.1(a)(6), then added a six-level increase
for an offense involving 25 to 99 firearms, id. § 2K2.1(b)(1)(C),1
According to the transcript of the sentencing hearing, the 1
district court judge apparently stated that he was adding a four-
level increase for this factor. However, the court's other
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a four-level increase for trafficking in firearms, id.
§ 2K2.1(b)(5), and a four-level increase for reason to believe that
the firearms would be used in connection with another felony, id.
§ 2K2.1(b)(6). The court then subtracted three levels for
acceptance of responsibility. Id. § 3E1.1(a)-(b). With an offense
level of 25 and a criminal history category of I, Maldonado-
Escarfullery's Guidelines range was 57 to 71 months of
imprisonment. The combined statutory maximums were, of course,
longer.
After considering the Guidelines range, the
recommendations in the plea agreements, and the arguments of
counsel, the court sentenced Maldonado-Escarfullery to 12 months
and one day for Case 09-109; 15 months for Case 09-143 (less than
the government recommended), to be served concurrently; and 57
months for Case 10-447, to be served consecutively, for a total
term of imprisonment of 72 months. Maldonado-Escarfullery objected
to the consecutive sentence. He timely appealed his sentence on
February 11, 2011.
Maldonado-Escarfullery now argues that the district
court's sentence was an abuse of discretion, saying the court
failed to comply with 18 U.S.C. § 3584(b), which requires a court
calculations show that he in fact added six levels, as was proper
under the November 1, 2009 edition of the Guidelines, which the
judge stated he was using. Neither party objected to this apparent
discrepancy during the hearing, and neither raises it as an issue
on appeal.
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to consider the statutory sentencing factors under 18 U.S.C.
§ 3553(a) when deciding whether multiple sentences of imprisonment
will be served concurrently or consecutively. We evaluate
Maldonado-Escarfullery's claim under an abuse of discretion
standard. United States v. Carrasco-de-Jesús, 589 F.3d 22, 26 (1st
Cir. 2009) (citing Gall v. United States, 552 U.S. 38, 51 (2007)).
Review of a sentence under this standard generally involves a two-
step process: First, we determine whether the district court
committed procedural error. Second, if there was no procedural
error, we determine whether the sentence was substantively
reasonable. Gall, 552 U.S. at 51. Taking defendant to allege on
appeal both types of error, the claim fails.2
The record shows that the district court did consider the
statutory sentencing factors when it imposed a consecutive sentence
for Case 10-447. The court referred to section 3553(a) throughout
the sentencing hearing, though not always by name. For instance,
when announcing its sentence, the court stated that the defendant's
The government argues, briefly, that the waivers of appeal 2
in Maldonado-Escarfullery's plea agreements bar any claims here as
to Cases 09-109 and 10-447, because in both of those cases the
district court imposed the sentences recommended by the agreements.
However, with regard to Case 10-447, the plea agreement did not
make any recommendation as to whether the sentence should run
concurrently or consecutively. Since the district court's
imposition of a consecutive sentence in Case 10-447 is the subject
of Maldonado-Escarfullery's challenge on appeal, his claim before
this court falls outside the scope of the waivers of appeal. He
does not challenge the number of months imposed in either case,
which his waivers would have prohibited.
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request of 57 months concurrent was "not sufficient under the
sufficient but not greater than necessary standard" -- that is, the
standard laid out in section 3553(a). The court also repeatedly
emphasized the need for a consecutive sentence in Case 10-447 in
light of Maldonado-Escarfullery's breach of the court's trust by
committing another firearms offense while free on bond. That is a
sentencing factor consideration. See 18 U.S.C. § 3553(a)(2)(A)
(directing court to consider "the need . . . to promote respect for
the law").
The court also carefully considered arguments from
defendant's counsel regarding Maldonado-Escarfullery's cooperation
with the government in apprehending other members of the
conspiracy, and as a result the court granted a 15-month downward
variance from the government's recommended sentence in Case 09-143.
See id. § 3553(a)(1) (directing court to consider "the
history . . . of the defendant"). Finally, Maldonado-
Escarfullery's counsel specifically recognized that the court had
considered the relevant factors, stating during his argument for
reconsideration of the sentence: "Your Honor, I know that you have
stated that the [sic] 3553 has been satisfied and the only way is
to impose a consecutive sentence."
In the context of the entire sentencing hearing, this was
more than enough. See United States v. Dávila-González, 595 F.3d
42, 49 (1st Cir. 2010) ("Although the court did not specifically
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reference the factors that the appellant now highlights, the
sentencing transcript, read as a whole, evinces a sufficient
weighing of the section 3553(a) factors."); Carrasco-de-Jesús, 589
F.3d at 29 ("The court's statement of its reasons for its choice of
a sentence plainly takes into account the section 3553(a)
factors."). The district court had an ample basis to impose a
consecutive sentence for Case 10-447.
The sentence is affirmed.
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