No. 19-1505

UNITED STATES OF AMERICA,

Appellee,

v.

LINCOLN GABRIEL PUPO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Aida M. Delgado-Colón, U.S. District Judge]

Before

Thompson, Lipez, Circuit Judges, and Laplante,* District Judge.

Andrew S. McCutcheon, Assistant Federal Public Defender, with whom Eric Alexander Vos, Federal Public Defender, and Franco L. Pérez-Redondo, Supervisor, Appeals Division, Assistant Federal Public Defender, were on brief, for appellant. Gregory B. Conner, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

April 20, 2021

* Of the District of New Hampshire, sitting by designation. THOMPSON, Circuit Judge. Appellant Lincoln Gabriel Pupo pleaded guilty to the federal crime of carjacking, 18 U.S.C. § 2119. Prior to his plea, he negotiated a deal with the government stipulating a total offense level ("TOL") but not a Criminal History Category ("CHC"). At sentencing, the district judge calculated a higher TOL than the one in the plea agreement, which together with the court's CHC calculation resulted in a higher sentencing range than contemplated by the parties. Pupo, citing procedural and substantive defects during sentencing, requests that we vacate his sentence and remand for resentencing. Perceiving no error, we affirm.

Background1

On January 15, 2018, two women returned to their parked car after enjoying a meal at a Longhorn Steakhouse in Guaynabo, Puerto Rico. As they settled into the car, Pupo approached the driver's side window and ordered the pair to step out. Pupo made his intentions clear, announcing that he was "assault[ing]" them and that they should exit the vehicle immediately. Then he upped the ante, telling them to get out of the car or else he would shoot

We draw the facts from the materials on appeal, 1 including the uncontested parts of the probation office's pre- sentence report ("PSR"), the plea colloquy, and the transcript of the relevant hearings. See United States v. Berrios-Miranda, 919 F.3d 76, 77 n.1 (1st Cir. 2019).

-2- them (though, unbeknownst to the pair, Pupo did not have a gun). The two women complied, handed over the keys, and allowed Pupo to drive off with the car. Soon thereafter, local law enforcement located the vehicle and arrested Pupo. The two women identified Pupo as their assailant. On January 18, 2018, a federal grand jury charged Pupo with one count of carjacking, in violation of 18 U.S.C. § 2119. Pupo struck a deal with the government and pleaded guilty to the sole offense.

Leading up to his sentencing hearing, both probation's pre-sentence investigation and defense counsel's investigation revealed that Pupo had a tough upbringing and suffered from extensive substance abuse and mental health issues. Pupo came from a dysfunctional home and grew up in several public housing projects where violence pervaded. Living in an environment with rampant drug use, he began using several controlled substances at an early age. In 2011, a Puerto Rico Department of Corrections social worker diagnosed him with mixed adjustment disorder, anxiety, and depression while acknowledging a previous diagnosis of bipolar disorder and ADHD. Most recently, in 2018, Pupo underw