First Circuit: Dangerousness of Machine Guns Not Justification for Above-Guidelines Sentence
When Julian River-Berrios was seen with a federal fugitive in Puerto Rico, he was arrested for being a felon in possession of a firearm and for that possession being a “machine gun” under 18 U.S.C. §§ 922(g)(1) and (922)(o)(1). When the Government realized he wasn’t a felon, it had to drop the felon in possession charge, and Rivera-Berrios then pleaded guilty to possessing the machine gun.
The presentence report established that Rivera-Berrios was a first-time offender and that the U.S. Sentencing Guidelines range (“GSR”) for his offense was two- to two-and-a-half years in prison. The Government recommended a sentence at the bottom of that range.
Instead, the district court gave a speech about guns and violence in Puerto Rico and imposed a three-and-a-half year sentence. The court noted that “modern machine guns can fire more than one thousand rounds a minute allowing a shooter to kill dozens of people within a matter of seconds.” It continued that machine guns are only available on the black market and that “violent crimes and murder are occurring at all hours of the day in Puerto Rico, in any place on the island, even on congested public highways, in shopping centers, public basketball courts, and at cultural events.”
But Rivera-Berrios’ possession of a machine gun had nothing to do with any of that. He had never used it to commit a crime and said he kept it to protect his family. It was a modified Glock pistol enabled to fire automatically, which made it a “machine gun” by law. 26 U.S.C. § 5845(a). He appealed the above-Guidelines sentence.
Under 18 U.S.C. § 3553(a), a sentencing court “shall consider” certain factors and state on the record its reasons for imposing a sentence. While this doesn’t have to be an exhaustive explanation, “the explanation must elucidate the primary factors driving the sentence,” the First Circuit has held. While a sentencing court may deviate from the GSR, it must provide a sufficient reason for doing so, the Court reiterated.
Here, the sentencing court wrote two short sentences about Rivera-Berrios’ character but “then dwelled at some length on the pervasiveness of violent crime,” the Court said. “The sentencing court appears to have relied on nothing beyond the mere fact that the offense of conviction involved a machine gun,” which the Court described as a “non-violent and victimless crime.”
The problem was that the district court’s focus on the dangerousness of the machine gun ignored that the sentencing Guidelines already accounted for that in establishing the recommended sentence for such an offense. “When a sentencing court relies on a factor already accounted for by the sentencing guidelines to impose a variant sentence, it must indicate what makes that factor worthy of extra weight,” the Court said.
The district court didn’t do that here. Even though the court cited the § 3553(a) factors for its sentence, “the section 3553(a) factors must be assessed in case-specific terms,” the Court said. Those factors apply to any defendant and are “generic,” it noted.
“The sentencing guidelines are meant to cover the mine-run of particular crimes, thus ensuring a modicum of uniformity in sentencing,” the Court explained. A district court may only go above the GSR “if some special characteristic attributable either to the offender or to the offense of conviction serves to remove a case from the mine-run.” That did not happen in this case, the Court concluded.
Related legal case
United States v. Rivera-Berrios
|Cite||968 F.3d 130 (1st Cir. 2020)|
|Level||Court of Appeals|
|Appeals Court Edition||F.3d|