Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 13–2457
UNITED STATES OF AMERICA,
Appellee,
v.
JIMMY SANTIAGO-BURGOS,
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
Torruella, Kayatta, and Barron,
Circuit Judges.
Julio E. Gil de Lamadrid and Gil de Lamadrid, PSC, on brief
for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, with Carmen M. Marquez-Marín, Assistant United
States Attorney, and Rosa Emilia Rodríguez-Velez, United States
Attorney, on brief for appellee.
February 4, 2015
KAYATTA, Circuit Judge. Jimmy Santiago-Burgos
("Santiago") argues that the district court abused its discretion
in sentencing him to 30 months imprisonment, an upward variant from
a United States Sentencing Guidelines range of 10–16 months. As
evidence of this, Santiago points to several statements the
district court made during his sentencing hearing, specifically:
(1) that the gun he carried was a "cop killer"; (2) that he was not
a first-time offender; and (3) that he voluntarily failed to appear
at a Massachusetts criminal hearing. Our review of these
statements in context shows that they were either not clearly
erroneous or not the basis of the district court's upward variance.
We affirm.
I. Discussion
We review Santiago's sentence for abuse of discretion.
United States v. Clogston, 662 F.3d 588, 590 (1st Cir. 2011)
(citing Gall v. United States, 522 U.S. 38, 46 (2007)). In so
reviewing, we bifurcate our inquiry, first asking (1) whether there
was "significant procedural error," and then (2) whether the
sentence was substantively reasonable. United States v. Martin,
520 F.3d 87, 92 (1st Cir. 2008). When assessing a sentence's
procedural reasonableness for abuse of discretion, we review
factual findings for clear error. United States v. Serunjogi, 767
F.3d 132, 142 (1st Cir. 2014). Santiago's challenge, while not
stated in such terms, is primarily to the procedural reasonableness
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of his sentence. See United States v. Battle, 637 F.3d 44, 51 (1st
Cir. 2011) (procedural errors including selecting a sentence based
on clearly erroneous facts and failing to adequately explain a
chosen sentence).
A. Procedural Reasonableness
1. The gun is a "cop killer."
During the sentencing hearing, the court stated that "Mr.
Santiago was in possession of an FN pistol, commonly known as the
'cop killer', which had laser sights and [was] loaded with a
magazine with ten rounds of ammunition[.]" Santiago argues that
there is no credible basis on which the court made that
characterization. Santiago did not object to this statement below,
so we review for plain error only. United States v. Sebastian, 612
F.3d 47, 50 (1st Cir. 2010). The "cop killer" comment was a
reference to the type of firearm, not Santiago, and was made in the
context of the district court's consideration of the offense's
circumstances: that the gun was loaded, had a laser sight, and was
found with $1,300. The court properly considered these aggravating
circumstances in determining Santiago's sentence.
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2. Santiago is not a first-time offender.
The court also stated that "Mr. Santiago is not a first[-
]time offender."1 Santiago's attorney challenged this, and noted
for the court that "[Santiago] is a first offender[;] he has not
committed any other crime. That [Massachusetts] case will be
dismissed. His only conviction is this one[.]" But the district
court never said he had a prior conviction, and made that point
clear in reply.2 Thus, the district court did not base the upward
variance on a clearly erroneous fact.
3. Santiago failed to appear.
The court stated that "[a]t the time that [Santiago] was
arrested for this offense he had failed to appear in the court in
Massachusetts for a trial on charges of assault with a dangerous
weapon and home invasion." Santiago's attorney challenged this,
stating that Santiago did not voluntarily fail to appear because he
was in jail in Puerto Rico at that time. In response, the court
1
The court went on to say: "The Court finds that the
sentencing guideline range for this type of offense is inadequate,
certainly the Court's understanding is that it is not reflective of
the seriousness of the offense, is not reflective of the fact that
the defendant chose to violate the law while he was on bail from
the judicial system in Connecticut [sic]. And that he came to the
jurisdiction and engaged in an illegal action while on bail."
2
In reply, the court stated: "That is not an issue. He has
to go there, it will be decided and if the case is dismissed fine
with me. I don't have qualms. But he was on bail, under court
instructions, and one [of the] general conditions of bail is you
shall not engage in any illegal activity[;] he came here and he
did."
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clarified what it meant: "No, I am not talking about the failure to
appear, I know he was here. I am talking about engaging in the
illegal action of illegally possessing a weapon while on bail."
Therefore, the court did not rely on Santiago's involuntary failure
to appear.
B. Substantive Reasonableness
The district court provided legitimate reasons for
upwardly varying Santiago's sentence: (1) that he committed this
offense while out on bail for a separate, violent offense; (2) that
the weapon he had was loaded, had a laser sight, and was found
along with $1,300; and (3) that this type of offense is
particularly harmful in Puerto Rico.3 The first two considerations
are unquestionably valid factors for a sentencing judge to take
into account. See, e.g., United States v. Vega-Santiago, 519 F.3d
1, 5 (1st Cir. 2008) (en banc). And we have previously held that
a sentencing court may consider the incidence of crime (and the
deterrent effect of a harsh sentence) in a particular community.
See United States v. Flores-Machicote, 706 F.3d 16, 23 (1st Cir.
2013). Given the reasons supplied, the district court did not
abuse its discretion in crafting Santiago's sentence. See Martin,
3
The court said: "For the type of weapon that he bought and
what he had in his possession while being on bail and actually I
consider this type of offenses [sic], more so here in Puerto Rico,
so serious and damaging to the safety of the people in the
community[.]"
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637 F.3d at 96 (noting that a sentence will stand as long as there
is a plausible rationale and a defensible result).
II. Conclusion
We affirm Santiago's sentence.
So ordered.
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