United States v. Suarez-Gonzalez, 1st Cir. (2014)

United States Court of Appeals
For the First Circuit
Nos. 13-1594
13-1597
UNITED STATES OF AMERICA,
Appellee,
v.
JOE L. SUREZ-GONZLEZ, a/k/a JOEY,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Torruella, Selya and Lipez,
Circuit Judges.
Guillermo A. Macari-Grillo on brief for appellant.

Rosa Emilia Rodrguez-Vlez, United States Attorney, Nelson
Prez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Thomas F. Klumper, Assistant United States Attorney,
on brief for appellee.
July 23, 2014
SELYA, Circuit Judge. Defendant-appellant Joe L. SurezGonzlez pleaded guilty to an array of counts, spread over two
separate indictments, involving the theft and/or conversion of
postal money orders from the United States Postal Service (USPS).
The district court sentenced him to serve twenty-one months in
prison.
The appellant challenges the procedural and substantive
reasonableness of his sentence.
The first of these challenges
presents a question of first impression with respect to the

interpretation
2B5.1(b)(2)(A).
of
guideline
enhancement
provision,
USSG
Finding both his procedural and substantive
challenges unavailing, we affirm.

I.
BACKGROUND
Because these appeals trail in the wake of guilty pleas,
we glean the facts from the plea agreements, the change-of-plea

colloquy, the uncontested portions of the presentence investigation
report (PSI Report), and the transcript of the disposition hearing.
See United States v. Nguyen, 618 F.3d 72, 73 (1st Cir. 2010).
In the fall of 2011, the appellant was employed as a
construction worker in connection with the remodeling of a postal
station in San Juan, Puerto Rico (the Facility).
While toiling
there, he stole and cashed four USPS money orders. He then filched
a key to the Facility and gave it to a confederate (Santiago Pea).
Using this key, Pea surreptitiously entered the Facility and,
acting on the appellant's instructions, printed 126 bogus USPS
-2-
money orders.
The pair later arranged for others to go to post
offices in the area and cash the money orders.

This scheme unraveled after postal inspectors received a
tip about an attempt to redeem a suspicious money order.
ensuing investigation produced two indictments.
The
After initially
maintaining his innocence, the appellant elected to plead guilty to

126 counts, spread over both indictments, of aiding and abetting
others in stealing or knowingly converting postal money orders.
See 18 U.S.C. 2, 500.
The plea agreement referable to the first of the two
indictments suggested some preliminary guideline calculations: a
base offense level of nine, see USSG 2B5.1(a); a four-level
enhancement for loss in excess of $10,000 but not more than
$30,000, see id. 2B5.1(b)(1)(B); and a two-level reduction for
acceptance
of
responsibility,
see
id.
3E1.1(a).
If
the
appellant's criminal history score placed him in criminal history

category
(CHC)
I,
the
guideline
sentencing
range
(GSR)
was
estimated to be eight to fourteen months.

The plea agreement referable to the second indictment
also suggested a series of preliminary guideline calculations: a
base
offense
level
of
nine,
see
id.
2B5.1(a);
six-level
enhancement for loss in excess of $30,000 but not more than

$70,000, see id. 2B5.1(b)(1)(B); and a two-level reduction for
acceptance
of
responsibility,
see
-3-
id.
3E1.1(a).
If
the
appellant's criminal history score placed him in CHC I, the GSR was
estimated to be twelve to eighteen months.
Both plea agreements permitted the appellant to request,
without opposition from the government, a split sentence (that is,
a sentence to be served partly in prison and partly in home
confinement).
Moreover, the government stipulated that it would
not oppose concurrent sentences.

The district court accepted the appellant's guilty pleas
at an omnibus change-of-plea hearing.
At the conclusion of this
hearing, the court ordered the preparation of a PSI Report.
When
received, the PSI Report treated the two indictments as a unit and
grouped all of the counts of conviction for a combined offense
level of nine.
See id. 3D1.2(d).
It then recommended an eight-
level enhancement for an aggregate monetary loss above $70,000 but

not more than $120,000, see id. 2B5.1(b)(1)(B), and a three-level
reduction for acceptance of responsibility, see id. 3E1.1(b).
likewise
recommended
two-level
enhancement
under
It
USSG
2B5.1(b)(2)(A) because the appellant "possessed or had custody of

or control over a counterfeiting device or materials used for
counterfeiting."
Finally, it tabulated the appellant's criminal
history score and recommended that he be placed in CHC II.

At sentencing, the district court embraced the grouping
concept and the offense level adjustments.
However, the court
calculated the appellant's criminal history score more charitably
-4-
and placed him in CHC I.
These determinations yielded a GSR of
twenty-one to twenty-seven months, and the court imposed a bottomof-the-range incarcerative sentence.
II.
These timely appeals ensued.
ANALYSIS
In this venue, the appellant claims that his sentence is
both procedurally and substantively unreasonable.
We proceed
directly to these arguments, bypassing the government's problematic

contention that these appeals are barred by the waiver-of-appeal
provision contained in each of the appellant's plea agreements.
See United States v. Prez-Crespo, 557 F. App'x 6, 7 n.1 (1st Cir.
2014) (adopting a similar approach).
A.
The Procedural Claims.
The appellant argues that his sentence is procedurally

flawed for two reasons.
1.
We address these arguments separately.
USSG 2B5.1(b)(2)(A).
The appellant concedes the
correctness of all but one of the district court's guideline

calculations.
He challenges only the two-level enhancement under
USSG 2B5.1(b)(2)(A).
By its terms, this enhancement applies to a defendant who
has "manufactured or produced any counterfeit obligation . . . of
the United States, or possessed or had custody of or control over
a counterfeiting device or materials used for counterfeiting."
USSG 2B5.1(b)(2)(A).
The appellant says that he did not use a
"counterfeiting device."
Rather, the postal money orders at issue

-5-
here
were
genuine
(that
is,
printed
with
conventional
equipment on authentic postal money order blanks).
USPS
Therefore, the
enhancement does not pertain.

We review the district court's interpretation of the
sentencing guidelines de novo.
F.3d 72, 79 (1st Cir. 2012).
See United States v. Clark, 685
Here, the appellant's argument turns
on the meaning of "counterfeiting device."
As is true of the
interpretation of statutes, the language of a guideline provision

furnishes the most reliable guide to its interpretation.
See
United States v. Dixon, 449 F.3d 194, 202 (1st Cir. 2006).
When
the language of the guideline is plain and unambiguous, that is the

end of the matter.
See id. at 203.
If, however, the language of
the guideline leaves legitimate room for doubt, an inquiring court

may
look
to
other
interpretive
aids,
including
context
and
background. See United States v. Alvarez-Cuevas, 415 F.3d 121, 125

(1st Cir. 2005).
We think that the term "counterfeiting device" has a
plain,
ordinary,
counterfeiting.
and
unambiguous
meaning:
device
used
for
While the guidelines do not define this term, the
Sentencing Commission has explicitly defined a "counterfeit" as "an

instrument that has been falsely made, manufactured, or altered."
USSG 2B5.1, comment. (n.1).
In turn, "alter" means "[t]o make a
change in; to modify; to vary in some degree; to change some of the

elements or ingredients or details without substituting an entirely
-6-
new thing or destroying the identity of the thing affected."

Black's Law Dictionary 77 (6th ed. 1990).
This definition of "counterfeit" informs the meaning of
the term "counterfeiting device." By arranging for the printing of
fake dollar amounts on otherwise worthless money order blanks, the
appellant
"altered"
those
blanks
and
accomplished through the use of a machine.
this
alteration
was
Taken at face value,
the appellant's actions comprise alteration of postal money orders

through the use of a mechanical counterfeiting device.
No more is
exigible to warrant application of the enhancement.

The appellant rejoins that the word "alter[]" in the
counterfeiting context is a term of art.
He notes that the
definition of "counterfeit" was added to the sentencing guidelines

in 2009, see USSG App. C, Amend. 731 (2009), and that prior to that
time the term was undefined.
He correctly points out that the
addition of the definition was intended to resolve differing

judicial treatment of so-called "bleached note" cases cases in
which defendants chemically stripped genuine United States currency
and reprinted it with higher values.
See id.; compare, e.g.,
United States v. Schreckengost, 384 F.3d 922, 923-25 (7th Cir.

2004), with, e.g., United States v. Dison, No. 07-50072-04, 2008 WL
351935, at *1-2 (W.D. La. Feb. 8, 2008).
pellucid
that
"bleached
note"
-7-
The new definition made
schemes
would
qualify
as
counterfeiting because such schemes involved the false alteration

of genuine monetary instruments.
Building on this foundation, the appellant insists that
the word "alter" is meant to apply exclusively to the "bleached
note" context. But this reading is far too crabbed. Although part
of the impetus for the 2009 amendment was to clarify that "bleached
note" cases are subject to the enhancement under 2B5.1(b)(2)(A),
the language of the amendment was in no way limited to such cases.
To the contrary, the Sentencing Commission stated unreservedly that
the new definition was meant to insure that "altered instruments
are treated as counterfeit and sentenced under 2B5.1."
C, Amend. 731 (2009).
USSG App.
The appellant's offenses plainly involved
altered instruments.
To
cinch
matters,
in
crafting
the
amendment
the
Sentencing Commission expressly recognized that new technologies

had "rendered obsolete the previous distinction in the guidelines
between an instrument falsely made or manufactured in its entirety
and a genuine instrument that is altered."
Id.1
Based on this
language, we find it hard to accept the appellant's interpretation

that bleached notes are the only "altered" instruments to which
this enhancement is meant to apply.
The reference to the "previous distinction" reflects an

earlier application note, which had indicated that "counterfeit"
was not meant to apply to "genuine instruments that have been
altered."
USSG 2B5.1, comment. (n.3) (Nov. 2008).
The 2009
amendment deleted this application note.
-8-
The appellant next argues that the "device" that Pea

used at the appellant's direction to create bogus money orders was
an authentic money order printer.
This fact, he says, insulates
him from any claim that the printer was a counterfeiting device
and, thus, insulates him from the enhancement.
That argument is
hopeless. The authenticity of the printer in no way diminishes the

counterfeit nature of the ersatz money orders printed at the
appellant's direction. This enhancement has routinely been applied
to counterfeits created through the use of legitimate devices, see,
e.g., United States v. Taylor, 991 F.2d 533, 535-36 (9th Cir. 1993)
(photocopy machine); United States v. Castillo, 928 F.2d 1106, 1108
(11th Cir. 1991) (counterfeit money detector); United States v.
Penson, 893 F.2d 996, 998 (8th Cir. 1989) (paper cutter), and we
have no difficulty in approving the district court's application of
it here.
As a last resort, the appellant seeks to find sanctuary
in the rule of lenity.
The rule of lenity generally applies to
criminal statutes that are subject to more than one plausible

interpretation and demands that the interpretation more favorable
to the defendant prevail.
See Jones v. United States, 529 U.S.
848, 858 (2000); United States v. Aponte-Guzmn, 696 F.3d 157, 160
(1st Cir. 2012).
We have looked with favor on the application of
this rule to a sentencing guideline when "substantial ambiguity as

to the guideline's meaning persists even after a court looks to its
-9-
text, structure, context, and purposes."
United States v. Damon,
595 F.3d 395, 401 (1st Cir. 2010).

Here, however, the rule of lenity is purely a makeweight.
There is simply nothing ambiguous either about the meaning of the
guideline provision or about its applicability to the appellant's
conduct.
The unvarnished text of the guideline, reinforced by the
commentary, leaves no doubt but that it reaches the conduct to

which the appellant pleaded guilty. It follows inexorably that the
rule of lenity has no bearing.
That ends this aspect of the matter.
The two-level
enhancement under 2B5.1(b)(2)(A) is meant to reflect the increased

culpability of the producer of counterfeit obligations as compared
to
the
culpability
of
counterfeit obligations.
609
(6th
Cir.
2010);
one
who
merely
possesses
or
passes
See United States v. Webb, 616 F.3d 605,

USSG
2B5.1,
comment.
(backg'd).
The
Sentencing Commission was obviously concerned about the planning

and
degree
counterfeit
of
sophistication
government
incident
obligations
and,
to
the
thus,
treated production as an aggravating factor.

comment. (backg'd).
production
of
understandably
See USSG 2B5.1,
Seen in this light, the appellant's conduct
comes within the heartland of the enhancement.
-10-
Consequently, we
hold that the sentencing court did not err in applying the twolevel enhancement under 2B5.1(b)(2)(A).2
2. 18 U.S.C. 3553(a). The appellant's second claim of
procedural error posits that the lower court did not give fair and
balanced consideration to the sentencing factors limned in 18
U.S.C. 3553(a). Assaying this claim of error under a deferential
abuse-of-discretion standard, see United States v. Vargas, 560 F.3d
45, 51 (1st Cir. 2001), we find it meritless.
Once a sentencing court determines a defendant's GSR, it
is then required to consider the factors specified in 18 U.S.C.
3553(a).
See Vargas, 560 F.3d at 48.
Withal, the court "is not
required to address those factors, one by one, in some sort of rote

incantation when explicating its sentencing decision."
F.3d at 205.
weight.
Dixon, 449
Nor is the court required to give every factor equal
See id.
Reviewing the sentencing proceedings as a whole, we are
satisfied that the court appropriately considered the section

3553(a) factors. The court, referring to a number of those factors
and elaborating upon the appellant's background and criminal past,
determined
that
the
twelve-month
sentence
recommended
by
the
We note that the application notes provide that this

enhancement applies only to the counterfeiting of "bearer
obligations of the United States."
See USSG 2B5.1, comment.
(n.2). The record is opaque as to whether USPS money orders fit
this description. Since the appellant has raised no issue in this
regard, we express no view on it here.
-11-
government pursuant to the plea agreements did not reflect the

gravity of the offenses of conviction, did not promote respect for
the
law,
did
not
serve
the
end
of
deterrence,
and
adequately address the need for condign punishment.
did
not
Bearing in
mind that a sentencing court need not explicitly address every

consideration that enters into its decisional calculus, see United
States v. Fernndez-Hernndez, 652 F.3d 56, 72 (1st Cir. 2011), we
are satisfied that the court below sufficiently weighed the section
3553(a) factors.
We have seen this movie before.
Stripped of rhetorical
flourishes, the appellant's real complaint is not that the district

court overlooked or misapprehended relevant sentencing factors but,
rather, that the court gave more weight to factors that the
appellant regarded as unimportant and less weight to factors that
the appellant regarded as salient.
Although defendants often
complain about this sort of picking and choosing, such selective

triage is precisely the function that a sentencing court is
expected to perform.
B.
The Substantive Claim.
Finally, the appellant contends that his twenty-one month

sentence is substantively unreasonable.
We review the substantive
reasonableness of a sentence for abuse of discretion.
See United
States v. Gall, 552 U.S. 38, 46 (2007); United States v. King, 741
-12-
F.3d 305, 307 (1st Cir. 2014).
Applying that standard of review,
we reject the appellant's contention.

There
will
rarely,
sentence in any given case.
if
ever,
be
single
"perfect"
Rather, there will be a range of
reasonable sentences for a particular subset of criminal activity.

See United States v. Santiago-Rivera, 744 F.3d 229, 234 (1st Cir.
2014).
Within this range, district courts have wide discretion to
fashion specific sentences.
See United States v. Gallardo-Ortiz,
666 F.3d 808, 811 (1st Cir. 2012).

In this case, the appellant's sentence is at the nadir of
a properly calculated GSR.
Consequently, demonstrating that the
sentence is substantively unreasonable requires an especially steep

See United States v. Deppe, 509 F.3d 54, 62 (1st
uphill climb.
Cir. 2007).
As long as the sentence imposed is grounded in a
plausible view of the circumstances and its duration is defensible,

the defendant cannot scale the required heights. See United States
v. Carrasco-De-Jess, 589 F.3d 22, 30 (1st Cir. 2009); United
States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008).
Here,
the
district
court
articulated
rationale and arrived at a defensible result.

conduct
was
serious:
it
included
using
plausible
The appellant's
stolen
materials
to
orchestrate the production of a large number of bogus money orders,

valued
at
more
than
$100,000.
It
also
accomplices to cash the bogus money orders.
-13-
included
recruiting
The duration of the
sentence twenty-one months is commensurate with the seriousness

of the offenses.
Because the punishment comfortably fits the
crime,
no
there
is
principled
substantively unreasonable.
way
to
call
this
sentence
See Santiago-Rivera, 744 F.3d at 234.
In other words, there was no abuse of discretion.

III.
CONCLUSION
We need go no further. For the reasons elucidated above,
we uphold the appellant's sentence.
Affirmed.
-14-

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United States Court of Appeals

For the First Circuit

APPEALS FROM THE UNITED STATES DISTRICT COURT

Guillermo A. Macari-Grillo on brief for appellant.

July 23, 2014

The appellant challenges the procedural and substantive

reasonableness of his sentence.

The first of these challenges

presents a question of first impression with respect to the

Finding both his procedural and substantive

challenges unavailing, we affirm.

we glean the facts from the plea agreements, the change-of-plea

The pair later arranged for others to go to post

offices in the area and cash the money orders.

maintaining his innocence, the appellant elected to plead guilty to

appellant's criminal history score placed him in criminal history

estimated to be eight to fourteen months.

enhancement for loss in excess of $30,000 but not more than

Moreover, the government stipulated that it would

not oppose concurrent sentences.

At the conclusion of this

hearing, the court ordered the preparation of a PSI Report.

See id. 3D1.2(d).

It then recommended an eight-

level enhancement for an aggregate monetary loss above $70,000 but

2B5.1(b)(2)(A) because the appellant "possessed or had custody of

Finally, it tabulated the appellant's criminal

history score and recommended that he be placed in CHC II.

However, the court

calculated the appellant's criminal history score more charitably

and placed him in CHC I.

These determinations yielded a GSR of

These timely appeals ensued.

both procedurally and substantively unreasonable.

directly to these arguments, bypassing the government's problematic

The Procedural Claims.

The appellant argues that his sentence is procedurally

We address these arguments separately.

The appellant concedes the

correctness of all but one of the district court's guideline

He challenges only the two-level enhancement under

The appellant says that he did not use a

Rather, the postal money orders at issue

equipment on authentic postal money order blanks).

enhancement does not pertain.

See United States v. Clark, 685

Here, the appellant's argument turns

on the meaning of "counterfeiting device."

interpretation of statutes, the language of a guideline provision

the language of the guideline is plain and unambiguous, that is the

See id. at 203.

If, however, the language of

the guideline leaves legitimate room for doubt, an inquiring court

background. See United States v. Alvarez-Cuevas, 415 F.3d 121, 125

While the guidelines do not define this term, the

Sentencing Commission has explicitly defined a "counterfeit" as "an

In turn, "alter" means "[t]o make a

change in; to modify; to vary in some degree; to change some of the

new thing or destroying the identity of the thing affected."