US v. Ramos-Acevedo, No. 14-2073 (1st Cir. 2016)
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Not for Publication in West's Federal Reporter United States Court of Appeals For the First Circuit No. 14-2073 UNITED STATES, Appellee, v. ANTONIO RAMOS-ACEVEDO, Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Daniel R. Domínguez, U.S. District Judge] Before Howard, Chief Judge, Thompson and Barron, Circuit Judges. Peter J. Cyr and Law Offices of Peter J. Cyr on brief for appellant. Susan Jorgensen, Assistant United States Attorney, Nelson Pérez Sosa, Assistant United States Attorney, Chief, Appellate Division, and Rosa Emilia Rodríguez-Vélez, United States Attorney, on brief for appellee. June 14, 2016 Per curiam. Antonio Ramos-Acevedo ("Ramos") pled guilty to possession of a firearm by a convicted felon. § 922(g)(1). He appeals his substantively unreasonable. that Ramos waived reasonable. sentence as review of his sentence by his In any event, the imposed sentence was Accordingly, we affirm. Although potentially prison The government makes a good argument appellate litigation conduct. 71-month See 18 U.S.C. lower Ramos and sentence, repeatedly agreed to the imposed. Ordinarily, the at government his sentence "[a] bargained sentencing that party the waives judge a intentionally relinquishes or abandons it." Sánchez-Berríos, 424 F.3d 65, 74 (1st quotation marks and citation omitted). hearing Cir. right for a Ramos ultimately when he United States v. 2005) (internal A party may waive a right by affirmatively agreeing with a judge's proposed course of action. See United States v. DeLeon, 704 F.3d 189, 193 (1st Cir. 2013); United States v. Sweeney, 606 F. App'x 588, 591 (1st Cir. 2015) (unpublished). At sentencing, the district court contemplated applying a four-level sentencing enhancement, based on the circumstance that the firearm possessed by Ramos had an obliterated serial number. See U.S.S.G. § 2K2.1(b)(4). That enhancement would have raised Ramos's offense level to 25, and his guidelines sentencing - 2 - range to 70-87 months. However, after considering defense counsel's allocution about the possession (counsel asserted that Ramos had found the weapon on a beach, in a rusty condition, suggesting that the serial number had been obliterated previously), as well as mitigating factors relating to Ramos's background and enhancement. health, the court applied only a two-level This resulted in an offense level of 23 and a sentencing range of 57-71 months. The court imposed a sentence of 71 months. The judge explained how he had arrived at the sentence, and Ramos's counsel thanked the court repeatedly for its "generosity" and acknowledged that the court acted "within [its] discretion." The judge also expressly asked Ramos whether the 71- month sentence was acceptable to him, specifically noting that he was imposing a sentence at the high end of the guidelines range, to which Ramos replied "yes." Having repeatedly assented to the sentence before the district judge, Ramos is hard-pressed to now reverse course and claim that the sentence is unreasonable. Even reviewing for substantive reasonableness under an abuse of discretion standard, see United States v. Ruiz-Huertas, 792 F.3d 223, 228 (1st Cir.), cert. denied, 136 S. Ct. 258 (2015), we uphold the sentence. "Challenging the substantive reasonableness of a sentence is a formidable task, made more - 3 - burdensome where, as here, the challenged sentence is within a properly calculated GSR." 58 (1st Cir. 2015). United States v. Perretta, 804 F.3d 53, To prevail, "a defendant must adduce fairly powerful mitigating reasons and persuade us that the district court was unreasonable in balancing the pros and cons." quotation marks omitted). Id. (internal We give substantial deference to the sentencing court's exercise of discretion, and will uphold a sentence so long as the district court's rationale is plausible and its result is defensible. Given the See id. at 57-58. severity of the offense and Ramos's significant criminal history -- including two prior convictions for aggravated assault and a conviction for possessing a bladed weapon -- the district court acted within its discretion. Ramos contends that the court failed to adequately weigh mitigating factors relating to the firearm, his background and health, and his acceptance of responsibility. Not so. As noted above, due to the mitigating factors relating to the firearm possession and Ramos's background and health, the court applied only a two-level, rather than the usual four-level, enhancement for the obliterated serial number. It also applied a three-level reduction for Ramos's acceptance of responsibility. Ramos unreasonable further because it contends that exceeded what - 4 - the the sentence was government had recommended. As Ramos was informed in his plea agreement, however, the district court "was not bound by the jointly recommended sentence." United States v. Reverol-Rivera, 778 F.3d 363, 367 (1st Cir. 2015). In sum, the district court's rationale was plausible and its result sentences." falls well within the "universe Perretta, 804 F.3d at 58. of reasonable Ramos has not offered "fairly powerful mitigating reasons" that convince us to the contrary. Id. Accordingly, the sentence is AFFIRMED. - 5 -
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