United States v. Mulero-Vargas

Citation Codes

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Docket Number

No. 19-1941

Attorney(S)

José B. Vélez Goveo and Vélez & Vélez Law Office on brief for appellant. W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Robert P. Coleman III, Assistant United States Attorney, on brief for appellee.

Judges

SELYA, Circuit Judge.

Acts

Crimes And Criminal Procedure — Firearms — Crimes — Penalties
Food And Drugs — Drug Abuse Prevention And Control — Control And Enforcement — Offenses And Penalties — Prohibited Acts A
Crimes And Criminal Procedure — Sentences — General Provisions — Criminal Procedure — Imposition Of A Sentence
—Title 18 APPENDIXFEDERAL RULES OF CRIMINAL PROCEDURE — Pleas

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Smart Summary

Factual and Procedural Background

Defendant-appellant José Mulero-Vargas and his confederate Luis Merced-García were indicted following the discovery of a stockpile of firearms, including two machineguns, ammunition, and drugs. They faced charges including aiding and abetting possession of a firearm in furtherance of a drug-trafficking crime and aiding and abetting possession of cocaine with intent to distribute. Both entered guilty pleas to the counts. The district court sentenced Merced-García to an eighteen-month term on the drug count and a consecutive 144-month term on the firearms count; his sentence was affirmed on appeal. Mulero was sentenced to a twenty-four-month term on the drug count and a consecutive 144-month term on the firearms count. Mulero appealed, challenging the procedural and substantive reasonableness of his sentence.

Legal Issues Presented

Whether the district court committed procedural error by holding Mulero responsible for possession of two machineguns rather than one, particularly given that this claim was not raised below and thus subject to plain-error review.
Whether Mulero's aggregate 168-month sentence is substantively unreasonable, specifically whether the court improperly weighed the nature of the offense against Mulero's personal history and characteristics.

Arguments of the Parties

Appellant's Arguments

Mulero contended that he was responsible for only one machinegun, not two, and that the district court erred procedurally by basing the upward variance of his sentence in part on responsibility for two machineguns.
He argued that his aggregate sentence was substantively unreasonable because the court placed excessive weight on the nature and circumstances of the offense and insufficient weight on his personal history and characteristics.
He also claimed that the district court’s disregard of the sentencing recommendations in the plea agreement rendered his sentence substantively unreasonable.

Appellee's Arguments

The government maintained that Mulero constructively possessed both machineguns as part of the joint possession with Merced-García, supported by Mulero’s admissions during the plea colloquy.
The government argued that the district court’s sentencing rationale was plausible and the sentence was within the broad range of reasonable outcomes given the seriousness of the offenses.
They asserted that the plea agreement’s sentencing recommendations were non-binding and the court was entitled to impose a different sentence.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
United States v. Rabb, 5 F.4th 95 (1st Cir. 2021)	Plain-error review standard	Applied to assess Mulero’s unpreserved claim of error regarding machinegun possession.
United States v. Duarte, 246 F.3d 56 (1st Cir. 2001)	Plain-error review four-part test	Guided the court’s analysis of whether the alleged error was clear or obvious and affected substantial rights.
United States v. Pinkham, 896 F.3d 133 (1st Cir. 2018)	Burden of persuasion on plain-error elements	Confirmed Mulero’s obligation to prove all elements of plain error.
United States v. Olano, 507 U.S. 725 (1993)	Definition of "clear or obvious" error	Clarified equivalency of "clear" and "obvious" errors in plain-error review.
United States v. Jones, 748 F.3d 64 (1st Cir. 2014)	Requirement that error be indisputable	Used to determine that the claimed error was not indisputable and thus not plain error.
United States v. Nuñez, 852 F.3d 141 (1st Cir. 2017)	Constructive possession doctrine	Supported the court’s conclusion that Mulero could be held responsible for the machinegun found in the vehicle through constructive possession.
United States v. Williams, 717 F.3d 35 (1st Cir. 2013)	Definition of constructive possession	Elaborated on the knowledge and intent necessary for constructive possession, applied here.
United States v. Ocampo-Guarin, 968 F.2d 1406 (1st Cir. 1992)	Constructive possession standard	Quoted to support the constructive possession analysis.
United States v. Ridolfi, 768 F.3d 57 (1st Cir. 2014)	Inference of knowledge and intent from circumstances	Applied to infer Mulero’s knowledge and intent in possessing the firearms.
Holguin-Hernandez v. United States, 140 S.Ct. 762 (2020)	Standard of review for substantive reasonableness	Established abuse of discretion standard for reviewing sentencing reasonableness.
United States v. Bruno-Campos, 978 F.3d 801 (1st Cir. 2020)	Abuse of discretion standard for sentencing review	Applied in evaluating Mulero’s substantive reasonableness challenge.
United States v. Clogston, 662 F.3d 588 (1st Cir. 2011)	Reasonableness of sentencing rationale	Used to confirm that a plausible rationale supports substantive reasonableness.
United States v. Martin, 520 F.3d 87 (1st Cir. 2008)	Defensible sentencing outcomes	Supported the conclusion that the sentence was within a defensible range.
United States v. Ruperto-Rivera, 16 F.4th 1 (1st Cir. 2021)	Disagreement with sentencing factor balancing not a valid ground for appeal	Applied to reject Mulero’s challenge based on the court’s weighing of sentencing factors.
United States v. Rivera-Morales, 961 F.3d 1 (1st Cir. 2020)	Range of defensible sentences	Supported the court’s conclusion that the sentence fell within the broad universe of reasonable outcomes.
United States v. Ubiles-Rosario, 867 F.3d 277 (1st Cir. 2017)	District court not bound by parties' sentencing recommendations	Confirmed that the court could disregard plea agreement recommendations.
United States v. Díaz-Rivera, 957 F.3d 20 (1st Cir. 2020)	Non-binding nature of plea agreement sentencing recommendations	Reinforced that the sentencing court is not bound by such recommendations.

Court's Reasoning and Analysis

The court first addressed Mulero's procedural claim that the district court erred by attributing responsibility for two machineguns rather than one. Because this issue was not raised below, the court applied plain-error review, which requires showing (1) an error occurred, (2) the error was clear or obvious, (3) it affected substantial rights, and (4) it seriously impaired the fairness, integrity, or public reputation of judicial proceedings.

The court found no clear or obvious error. Although the presentence report showed an inconsistency regarding the location of the second machinegun (found in Merced-García's vehicle rather than the residence), Mulero had admitted during the plea colloquy that both machineguns were possessed by both men. The court relied on the doctrine of constructive possession, which holds that possession can be actual or constructive, and constructive possession exists when a person knowingly has the power and intention to exercise dominion and control over an object, directly or through others. Given the joint criminal venture and Mulero's admissions, the court concluded the district court reasonably inferred Mulero’s constructive possession of the second machinegun. Thus, no error, much less plain error, occurred.

Regarding substantive reasonableness, the court reviewed Mulero’s aggregate 168-month sentence under an abuse of discretion standard. It found the sentencing rationale plausible and the result defensible. The district court articulated its reasoning clearly, considering the guideline ranges, the factors under 18 U.S.C. § 3553(a), Mulero’s personal circumstances, and the seriousness of the offenses, including the possession of two machineguns and a large quantity of ammunition and cocaine. The court emphasized the dangerous nature of machineguns and concluded the sentence reflected the seriousness of the offense, promoted respect for the law, protected the public, and addressed deterrence and punishment.

Mulero's disagreement with the court's balancing of sentencing factors was insufficient to overturn the sentence. Additionally, the court rejected Mulero's argument that disregarding the plea agreement’s sentencing recommendations rendered the sentence unreasonable, noting that such recommendations were non-binding and the court was entitled to impose a different sentence.

Holding and Implications

The court AFFIRMED the district court’s sentence.

The holding confirms that a defendant’s admissions during plea colloquy can support constructive possession findings, even when physical possession is attributed to a confederate’s vehicle, and that sentencing courts have broad discretion in weighing factors and imposing sentences beyond plea agreement recommendations. The decision directly upholds Mulero’s 168-month aggregate sentence and does not establish new precedent beyond reaffirming existing standards for plain-error review, constructive possession, and sentencing discretion.

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UNITED STATES OF AMERICA, Appellee, v. JOSÉ MULERO-VARGAS, t/n José Angel Mulero-Vargas, Defendant, Appellant.

SELYA, Circuit Judge.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Francisco A. Besosa, U.S. District Judge]

José B. Vélez Goveo and Vélez & Vélez Law Office on brief for appellant.

W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Robert P. Coleman III, Assistant United States Attorney, on brief for appellee.

Before Howard, Chief Judge, Selya and Gelpí, Circuit Judges.

SELYA, Circuit Judge.

Following the discovery of a trove of firearms (including two machineguns), ammunition, and drugs, defendant-appellant José Mulero-Vargas (Mulero) and a confederate, Luis Merced-García, were jointly indicted for, inter alia, aiding and abetting the possession of a firearm in furtherance of a drug-trafficking crime, see 18 U.S.C. § 924(c)(1)(A), and aiding and abetting the possession of cocaine with intent to distribute, see 21 U.S.C. § 841(a)(1). After some preliminary skirmishing, not relevant here, both men entered guilty pleas to these counts.

The district court sentenced Merced-García to a within-guidelines eighteen-month term of immurement on the drug-trafficking count and a consecutive upwardly variant 144-month term of immurement on the firearms count. Merced-García appealed, and we affirmed his sentence. See United States v. Merced-García, __F.4th__, __ (1st Cir. 2022) [No. 19-2033, slip op. at 12]. We assume the reader's familiarity with that opinion.

For his part, Mulero was sentenced to a within-guidelines twenty-four-month term of immurement on the drug-trafficking count and a consecutive upwardly variant 144-month term of immurement on the firearms count. Like Merced-García, Mulero appealed his sentence. He argues that his sentence on the firearms count is procedurally infirm and that his aggregate sentence is substantively unreasonable. We address these arguments in turn.

In his most loudly bruited plaint, Mulero says (in effect) that he only was responsible for one machinegun. Building on this foundation, Mulero asserts that the district court committed procedural error by predicating the upwardly variant portion of his aggregate sentence, in material part, on his responsibility for two machineguns.

Mulero's claim that the district court erred by holding him responsible for two machineguns was not raised below. Therefore, our review is for plain error. See United States v. Rabb, 5 F.4th 95, 101 (1st Cir. 2021); United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). Plain-error review "entails four showings: (1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant's substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings." Duarte, 246 F.3d at 60. As the proponent of plain error, Mulero "must carry the devoir of persuasion as to all four of these elements." United States v. Pinkham, 896 F.3d 133, 136-37 (1st Cir. 2018).

The record confers a patina of plausibility on Mulero's plaint. The presentence investigation report states in one section that, after searching the residence shared by Mulero and Merced-García, Puerto Rico police officers discovered a stockpile of firearms and ammunition, including one machinegun. The officers then requested and received permission to search Merced-García's automobile, presumably parked outside the residence, and discovered the second machinegun within the vehicle. Citing this discrepancy, Mulero argues that the district court erred in holding him responsible for the second machinegun.

But there is more to the story. The district court conducted a joint change-of-plea hearing for Mulero and Merced-García. During the ensuing colloquy, the court noted that both men were charged "with possession of a firearm in furtherance of a drug trafficking crime in that, about May 3, 2017, here in Puerto Rico, both of you, aiding and abetting each other knowingly possessed" seven listed weapons - a list that included both machineguns. The court then asked, "[I]s that what you did?" Mulero replied with an unequivocal "Yes." And at another point, he indicated his assent to the prosecutor's assertion that both machineguns were found "[i]n the living room, bathroom, and bedroom" of the dwelling.

Viewed against this backdrop, Mulero stumbles over the first and second steps of the plain-error test: we cannot find that the sentencing court committed error, much less a clear or obvious error. We explain briefly.

Courts typically describe this second step in the disjunctive: "clear or obvious." See, e.g., United States v. Olano, 507 U.S. 725, 734 (1993); Rabb, 5 F.4th at 101. A few courts, though, phrase this step in the conjunctive: "clear and obvious." See, e.g., United States v. Mendez, 802 F.3d 93, 98 (1st Cir. 2015); United States v. Sebastian, 612 F.3d 47, 50 (1st Cir. 2010). This variation makes no practical difference: an error that is "clear" is "obvious," and an error that is "obvious" is "clear." See Olano, 507 U.S. at 734 (noting the equivalency of the terms).

To constitute clear or obvious error, the claimed "error must be 'indisputable' in light of controlling law." Rabb, 5 F.4th at 101 (quoting United States v. Jones, 748 F.3d 64, 70 (1st Cir. 2014)). The putative error here is far from indisputable. Although there is an inconsistency in the record as to the whereabouts of the second machinegun, there is no room for doubt that Mulero possessed it. Even if we assume - favorably to Mulero - that the second machinegun was nestled in the vehicle, our case law makes pellucid "that possession can be either actual or constructive." United States v. Nuñez, 852 F.3d 141, 145 (1st Cir. 2017).

Constructive possession is present "when a person knowingly has the power and intention at a given time to exercise dominion and control over an object, either directly or through others." United States v. Williams, 717 F.3d 35, 39 (1st Cir. 2013) (quoting United States v. Ocampo-Guarin, 968 F.2d 1406, 1409 (1st Cir. 1992)). "[T]he requisite knowledge and intention can be inferred from the circumstances." United States v. Ridolfi, 768 F.3d 57, 62 (1st Cir. 2014).

Here, both Mulero and Merced-García were, by their own admission, aiding and abetting each other in the distribution of cocaine. So, too, both men admitted that they aided and abetted each other in the possession of firearms to further their cocaine-distribution venture. It follows, we think, that the district court had a solid basis for concluding that the two men were jointly in possession of the whole stockpile of guns, ammunition, and drugs (including the second machinegun, whether or not that machinegun was located in Merced-García's vehicle). Put another way, the district court - on these facts - was entitled to draw a reasonable inference that Mulero, at the very least, constructively possessed the second machinegun. Accordingly, there was no error, let alone a clear or obvious one.

This leaves Mulero's claim that his 168-month aggregate sentence is substantively unreasonable. The main thrust of this claim is that the court "plac[ed] too much weight on the nature and circumstances of the case and an insufficient amount of weight [on his] history and characteristics." Our review of this claim of error is for abuse of discretion. See Holguin-Hernandez v. United States, 140 S.Ct. 762, 766 (2020); United States v. Bruno-Campos, 978 F.3d 801, 808 (1st Cir. 2020).

A sentence is substantively reasonable as long as the sentencing rationale is plausible and the result is defensible. See United States v. Clogston, 662 F.3d 588, 593 (1st Cir. 2011); United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008). Here, the district court cogently articulated its sentencing rationale. After establishing the guideline sentencing ranges for each count, the court proceeded to consider the sentencing factors limned in 18 U.S.C. § 3553(a). The court discussed Mulero's age, family circumstances, education, lack of prior employment, and the like. It then recounted the facts of the offenses of conviction, describing the seven firearms, the cache of ammunition (more than 1, 600 rounds), and the significant quantity of drugs involved in the offenses. The court took particular note of the fact that two of the firearms were machineguns and commented that "machine guns are highly dangerous and unusual weapons that are not typically possessed by law-abiding citizens for lawful purposes." Having weighed all the aggravating and mitigating factors, the court determined that an aggregate sentence of 168 months adequately "reflect[ed] the seriousness of the offense, promote[d] respect for the law, protect[ed] the public from further crimes by Mr. Mulero, and address[ed] the issues of deterrence and punishment."

This rationale easily clears the plausibility hurdle. And Mulero's "disagreement with the district court's balancing of the [relevant sentencing] factors does not constitute a valid ground for appeal." Merced-García, __ F.4th at __[No. 19-2033, slip op. at 9]; see United States v. Ruperto-Rivera, 16 F.4th 1, 6 (1st Cir. 2021).

The challenged sentence also represents a defensible result. As we stated in Merced-García, the offenses of conviction were serious. See __F.4th at__ [No. 19-2033, slip op. at 11]. Mulero, aiding and abetting Merced-García, possessed seven firearms, including two machineguns, over 1, 600 rounds of ammunition, and more than 200 grams of cocaine. Given the gravity of the offenses, the sentencing outcome falls well within the "broad universe" of defensible sentences. United States v. Rivera-Morales, 961 F.3d 1, 21 (1st Cir. 2020).

There is one loose end. The plea agreement set certain parameters for sentencing recommendations. At the disposition hearing, the parties - acting within those parameters - offered their sentencing recommendations: the government asked for an aggregate incarcerative term of 144 months and Mulero asked for an aggregate incarcerative term of 114 months. The district court spurned both recommendations and imposed an aggregate incarcerative term of 168 months.

On appeal, Mulero makes a conclusory argument that his aggregate sentence is substantively unreasonable because the sentencing court disregarded the sentencing recommendations adumbrated in the plea agreement and subsequently advocated by the parties. Mulero, though, is milking a spent cow. The plea agreement's sentence recommendations were merely precatory. See Fed. R. Crim. P. 11(c)(1)(B). In such circumstances, we repeatedly have stated that when imposing a sentence, a "district court [i]s not bound by the parties' [sentencing] recommendations." United States v. Ubiles-Rosario, 867 F.3d 277, 294 (1st Cir. 2017); see United States v. Díaz-Rivera, 957 F.3d 20, 30 (1st Cir. 2020). So it is here.

We need go no further. For the reasons elucidated above, the challenged sentence is

Affirmed.