United States v. Santiago-Gonzalez

United States Court of Appeals
For the First Circuit

No. 14-1417

UNITED STATES OF AMERICA,

Appellee,

v.

HÉCTOR SANTIAGO-GONZÁLEZ,

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,
Torruella and Stahl, Circuit Judges.

Jedrick H. Burgos-Amador, on brief for appellant.
Mainon A. Schwartz, Assistant United States Attorney, Rosa
Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-
Sosa, Assistant United States Attorney, Chief, Appellate Division,
on brief for appellee.

June 6, 2016
 TORRUELLA, Circuit Judge. Defendant-Appellant Héctor

Santiago-González ("Santiago") was charged in a two-count criminal

indictment alleging bank robbery in violation of 18 U.S.C. § 2113

(a), (d) ("Count One"), and use of a firearm during and in relation

to a crime of violence, in violation of 18 U.S.C.

§ 924(c)(1)(A)(ii) ("Count Two"). Following trial, the jury

returned a guilty verdict against Santiago on both counts. The

district court sentenced Santiago to 120 months' imprisonment as

to Count One and eighty-four months' imprisonment as to Count Two,

to be served consecutively for a total of 204 months. Santiago

now appeals, claiming ineffective assistance of counsel. He also

challenges the sufficiency of the evidence to convict him as well

as the reasonableness of the district court's imposed sentence as

to Count One.

For the reasons that follow, we affirm the judgment

below, without prejudice, however, to appellant's right to raise

his claim of ineffective assistance of counsel in a post-conviction

relief proceeding brought pursuant to 28 U.S.C. § 2255.

I.

On August 15, 2011, an armed assailant entered the Banco

Popular branch in Morovis, Puerto Rico. Upon entering the bank,

the assailant covered his face with a mask and told bank teller

Lilia López-Rodríguez ("López-Rodríguez"), at gunpoint, to fill a

-2-
white plastic bag with money. López-Rodríguez complied with the

assailant's instructions, but she also placed two red security dye

packs1 inside the plastic bag. The bank robbery was captured by

the bank's video surveillance equipment.

After the assailant left the bank, Agent Orlando Guzmán-

Vélez ("Agent Guzmán"), an off-duty Puerto Rico Police Department

("PRPD") officer who was at the bank at the time of the robbery,

ran after Santiago and unsuccessfully attempted to detain the

assailant. At trial, Agent Guzmán testified that he observed the

assailant remove his mask as he exited the bank and get in the

driver's side of a dark brown Nissan Pathfinder.

On August 24, 2011, Officer Carlos González-Sotomayor

("Officer González"), an investigating agent and crime scene

technician with the PRPD Bank Robbery Division, received an

anonymous tip concerning a different bank robbery at CitiFinancial

in Orocovis, Puerto Rico. The record is not developed as to the

precise nature of the information provided by the anonymous

tipster. However, Officer González testified that the tipster

told him about a man known as "Bartolo," who owned a "dark burgundy

1 A security dye pack is a security device utilized by some banks
to identify money stolen during a bank robbery. The security dye
pack explodes and emits dye and pepper gas when removed from the
bank. Banco Popular utilized security dye packs that emitted a
red dye.

-3-
or brown colored" Nissan Pathfinder and a "white Honda Accord."

Officer González also testified that he confirmed that Santiago

was known as Bartolo.

The next day, Officers González and Joel Rodríguez-Cruz

("Officer Rodríguez") went to Santiago's address to corroborate

the information provided by the tipster. After remaining in the

area for several hours, the officers observed Santiago arrive in

a white Honda Accord. At this juncture, the officers decided to

request assistance from a patrol car so that Officer Rodríguez

could approach the residence under the pretext of investigating a

domestic disturbance call.2

When he arrived at the residence, Officer Rodríguez was

met by Julio Santiago-González ("Julio Santiago"), Santiago's

brother, and Gladys González-Fragosa ("González-Fragosa"),

Santiago's mother, who told the officer that her other son was

taking a bath.

Officer Rodríguez requested that Santiago come out of

the home when he was finished. When Santiago came outside, he

provided Officer Rodríguez with identification and was placed

under arrest for bank robbery. Officer Rodríguez advised Santiago

of his rights in accordance with Miranda v. Arizona, 384 U.S. 436

2 Officer Rodríguez was accompanied by three other police officers
in the patrol car, while Officer González remained behind.

-4-
(1966). After reading Santiago his rights, Officer Rodríguez

asked Santiago if he had the weapon or money connected to the bank

robbery. Santiago stated that he had disposed of the gun, but

reported that he had money inside the house. Santiago added that

the money was damaged because it was stained red.

Santiago, Julio Santiago, and González-Fragosa signed a

consent form authorizing a search of the residence. Santiago then

led Officer González to his bedroom and showed him where he had

stored money obtained during the robbery, which exhibited red

stains and exuded a strong pepper gas odor. Santiago told Officer

González that he also stored money from the robbery inside the

Honda Accord.3 Further, he told Officer González that he had

utilized the Nissan Pathfinder to commit the bank robbery.

González-Fragosa, the owner of the Nissan Pathfinder,

signed a second consent form authorizing the search of her Nissan

Pathfinder, which revealed that the passenger seat was stained

red. Similarly, Santiago signed a consent form authorizing the

search of the Honda Accord, yielding additional money that was

stained red.

3 Specifically, Santiago told Officer González that he had stashed
money inside the Honda Accord and in his wallet, which was located
inside the vehicle.

-5-
 Subsequently, Officers Rodríguez and González

transported Santiago to the police station. As they were driving,

Santiago, without prompting, told the officers that he was

repentant. The next day, Santiago, who was still under arrest,

told Officer Rodríguez that he wanted to apologize for the bank

robbery. Officer Rodríguez provided Santiago with additional

Miranda warnings, after which he provided Santiago with a pen and

a piece of paper. Santiago then wrote a note asking forgiveness

for committing the Banco Popular robbery in Morovis. That same

day, Agent Guzmán identified Santiago as the person who robbed the

Banco Popular in Morovis on August 15, 2011, during an in-person

lineup.4

II.

Appellate courts are usually "ill-equipped to handle the

fact-specific inquiry" required by ineffective assistance of

counsel claims. United States v. Rodríguez, 675 F.3d 48, 55 (1st

Cir. 2012) (quoting United States v. Ofray–Campos, 534 F.3d 1, 34

(1st Cir. 2008)). As a result, "'[w]e have held with a regularity

bordering on the monotonous' that ineffective assistance of

counsel claims, which require a showing of deficient attorney

4 Agent Guzmán testified at trial that he identified Santiago
during an in-person lineup; however, the record is largely silent
as to how the lineup was conducted.

-6-
performance and prejudice to the defendant, 'must originally be

presented to, and acted upon by, the trial court.'" Id. (quoting

United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993)).

Further, "the insights of the trier, who has seen and heard the

witnesses at first hand and watched the dynamics of the trial

unfold, are often of great assistance." Id. at 56 (quoting United

States v. Moran, 393 F.3d 1, 10 (1st Cir. 2004)). Accordingly,

only in exceptional cases where there are no critical facts in

dispute and the record is sufficiently developed will we entertain

an ineffective assistance of counsel claim on direct appeal.

Ofray–Campos, 534 F.3d at 34 (citing United States v. Torres–

Rosario, 447 F.3d 61, 64 (1st Cir. 2006)).

Santiago contends that his trial counsel provided

ineffective assistance of counsel because she failed to seek

suppression of the evidence against him. Santiago's principal

contention is that there was no probable cause to arrest him, which

tainted the evidence introduced against him.5 Santiago further

claims that his mother and brother lacked any authority to consent

to a search of his bedroom. Alternatively, Santiago posits that

5 Santiago does not dispute that he was read his rights in
accordance with Miranda. Instead, he posits that the warnings did
not attenuate the taint of his arrest.

-7-
Agent Guzmán's lineup identification was suppressible because the

lineup was suggestive.

Here, the record is not sufficiently developed for us to

assay Santiago's claims of ineffective assistance. The record is

unclear as to what probable cause existed for Santiago's arrest.

Moreover, the record is not sufficiently developed as to whether

Santiago's mother and brother could consent to a search of

Santiago's bedroom. The record is also devoid of any guidance as

to why Santiago's trial counsel did not pursue suppression of the

physical evidence against Santiago or Agent Guzmán's lineup

identification.

This undeveloped record renders us unable to

"reconstruct the circumstances of counsel's challenged conduct,

and to evaluate the conduct from counsel's perspective at the

time." Strickland v. Washington, 466 U.S. 668, 689 (1984).

Accordingly, we decline Santiago's invitation to address these

issues on direct appeal.

III.

"We review sufficiency of the evidence challenges de

novo." United States v. García-Carrasquillo, 483 F.3d 124, 129-

30 (1st Cir. 2007) (citing United States v. Boulerice, 325 F.3d

75, 79 (1st Cir. 2003)). In doing so, we affirm the conviction

when, "after viewing all the evidence in the light most favorable

-8-
to the government and indulging all reasonable inferences in the

government's favor, a rational factfinder could conclude that the

prosecution proved all elements of the crime beyond a reasonable

doubt." Id. Notably, we avoid credibility judgments as part of

this analysis. United States v. Negrón-Sostre, 790 F.3d 295, 307

(1st Cir. 2015) (citing United States v. Agosto-Vega, 617 F.3d

541, 548 (1st Cir. 2010)).

When reviewing a sufficiency of the evidence claim, we

consider all the evidence offered by the government that was

admitted by the court, "even if the court erroneously admitted

some of that evidence." United States v. Ramírez-Rivera, 800 F.3d

1, 16 (1st Cir. 2015) (citing Lockhart v. Nelson, 488 U.S. 33, 34,

40-41 (1988)); see also United States v. Claxton, 685 F.3d 300,

312 n.20 (3rd Cir. 2012).

Santiago challenges the sufficiency of the evidence

presented against him. Specifically, he argues that "given the

illegality of [his] arrest and its illegal fruits," we are

preempted from considering the evidence presented at trial.

Santiago also challenges Agent Guzmán's identification as not

being credible.

Here, the Government presented ample evidence to support

Santiago's conviction.6 Specifically, the Government presented

6 Santiago was convicted of violating 18 U.S.C. § 2113 (a), (d).

-9-
evidence that: (1) Santiago admitted to committing the robbery and

showed the arresting officers where he had hidden the proceeds

from the bank robbery; (2) López-Rodríguez, the Banco Popular bank

teller, testified that she placed two security dye packs in the

bag used to commit the bank robbery; (3) the money found in

Santiago's bedroom and vehicle was stained red; (4) a search of

González-Fragosa's Nissan Pathfinder showed that the passenger

seat was stained red; (5) there was surveillance video that showed

a masked assailant identified as Santiago utilizing a gun to commit

the bank robbery and fleeing in a Nissan Pathfinder; and (6) Agent

Guzmán observed Santiago flee the robbery in a dark brown Nissan

Pathfinder.

Although the evidence outlined so far is sufficient to

end Santiago's sufficiency claim, we note that Agent Guzmán

identified Santiago during a police lineup and again in court.

Section 2113(a) punishes the forcible taking of money or property
from a bank: "Whoever, by force and violence, or by intimidation,
takes . . . from the person or presence of another . . . any
property or money . . . belonging to . . . any bank." Section
2113(d) punishes whoever assaults or "puts in jeopardy the life of
any person by the use of a dangerous weapon or device" during the
commission of an offense defined in § 2113(a).

The jury also convicted Santiago of carrying a firearm in
relation to the bank robbery pursuant to 18 U.S.C. § 924(c)(1)
(A)(ii). A conviction under 18 U.S.C. § 924(c) requires proof
that the defendant used a real firearm when committing the
predicate offense. See United States v. Taylor, 54 F.3d 967, 975
(1st Cir. 1995).

-10-
Santiago claims that Agent Guzmán's identifications are

inadmissible because the record belies that he was able to observe

Santiago's face. However, we do not engage in credibility

determinations when reviewing the sufficiency of the evidence. In

any event, there was sufficient evidence presented against

Santiago aside from Agent Guzmán's identifications.

We further note that Santiago failed to advance any

argument that we should consider a suppression argument on appeal.7

Accordingly, we conclude that Santiago waived this argument. See

United States v. Houlihan, 92 F.3d 1271, 1292 (1st Cir. 1996)

(noting settled appellate rule that issues not briefed and properly

developed on appeal are waived); United States v. Zannino, 895

F.2d 1, 17 (1st Cir. 1990) ("It is not enough merely to mention a

possible argument in the most skeletal way, leaving the court to

7 Federal Rule of Criminal Procedure 12 was amended in 2014.
Prior to the amendment, Rule 12 stated that party motions not
brought prior to the trial court's deadline were waived. Fed. R.
Crim. P. 12(e) (effective until Dec. 1, 2014). In contrast, the
new rule states: "If a party does not meet the deadline for making
a Rule 12(b)(3) motion, the motion is untimely." Fed. R. Crim.
P. 12(c)(3). However, "a court may consider the defense,
objection, or request if the party shows good cause." Id. Rule
12(b)(3) motions include pre-trial motions requesting the
suppression of evidence. Fed. R. Crim. P. 12(b)(3)(C). This
change in wording has prompted some Circuits to conclude that plain
error review is proper even in the absence of good cause, while
others have opted to review unpreserved Rule 12 issues only upon
a showing of good cause. See United States v. Burroughs, 810 F.3d
833, 838 (D.C. Cir. 2016) (collecting cases). Given Santiago's
failure to address this issue, we need not address it here.

-11-
do counsel's work, create the ossature for the argument, and put

flesh on its bones.").

Thus, viewing the evidence in the light most favorable

to the jury's verdict, we find that there was sufficient evidence

presented as to both counts.

IV.

Lastly, Santiago challenges the reasonableness of the

district court's sentence as to Count One.8 The district court

calculated Santiago's guidelines sentencing range ("GSR") as

seventy to eighty-seven months' imprisonment. 9 However, the

district court made an upward variance of thirty-three months and

sentenced Santiago to a total of 120 months. The statute of

conviction provides a maximum sentence of twenty-five years. 18

U.S.C. § 2113 (a), (d).

We generally review the district court's sentencing

decisions for reasonableness under an abuse of discretion

standard. United States v. Trinidad–Acosta, 773 F.3d 298, 308

(1st Cir. 2014) (citing Gall v. United States, 552 U.S. 38, 51

8 Santiago styles his claim as a substantive reasonableness
challenge. However, he seems to advance, as well as cite case law
in support of, both procedural and substantive reasonableness
claims. As a result, we will consider procedural reasonableness
to the extent that it has any bearing on his sentence.
9 Santiago's total offense level was calculated at twenty-three
and he had a criminal history category ("CHC") of IV.

-12-
(2007)). "Appellate review of federal criminal sentences is

characterized by a frank recognition of the substantial discretion

vested in a sentencing court." United States v. Flores–Machicote,

706 F.3d 16, 20 (1st Cir. 2013).

When assaying procedural reasonableness, we "'review

factual findings for clear error, arguments that the sentencing

court erred in interpreting or applying the guidelines de novo,

and judgment calls for abuse of discretion simpliciter.'"

Trinidad–Acosta, 773 F.3d at 309 (quoting United States v.

Serunjogi, 767 F.3d 132, 142 (1st Cir. 2014)). Procedural

reasonableness "includes errors such as failing to consider

appropriate sentencing factors, predicating a sentence on clearly

erroneous facts, or neglecting to explain the rationale for a

variant sentence adequately." United States v. Del Valle-

Rodríguez, 761 F.3d 171, 176 (1st Cir. 2014) (citing United States

v. Martin, 520 F.3d 87, 92 (1st Cir. 2008)).

In contrast, substantive unreasonableness encompasses

whether the sentence survives scrutiny when examined under the

totality of the circumstances. Id. "The hallmarks of a

substantively reasonable sentence are 'a plausible sentencing

rationale and a defensible result.'" United States v. Díaz-

Bermúdez, 778 F.3d 309, 313 (1st Cir. 2015) (quoting Martin, 520

F.3d at 96).

-13-
 According to Santiago, the district court improperly

deviated from the GSR when it based the variance on his prior

criminal record, which was already contemplated in his CHC. He

relies on Ofray-Campos for the proposition that:

[w]hen a factor is already included in the
calculation of the guidelines sentencing range, a
judge who wishes to rely on that same factor to
impose a sentence above or below the range must
articulate specifically the reasons that this
particular defendant's situation is different from
the ordinary situation covered by the guidelines
calculation.

534 F.3d at 43 (quoting United States v. Zapete–García, 447 F.3d

57, 60 (1st Cir. 2006)).

Santiago ignores that a sentencing judge "may consider

whether a defendant's criminal history score substantially

underrepresents the gravity of his past conduct" as part of the

inquiry of the defendant's history and characteristics. Flores-

Machicote, 706 F.3d at 21 (citing United States v. Lozada–Aponte,

689 F.3d 791, 792 (1st Cir. 2012); United States v. Walker, 665

F.3d 212, 233-34 (1st Cir. 2011)). As a result, a district court

may vary a sentence upward in an effort to reflect past leniency.

Id.

Here, the district court noted that Santiago had an

extensive criminal history that encompassed a conviction for

burglary and various arrests for illegal appropriation, controlled

-14-
substances, and robbery.10 Notably, said conviction and arrests

did not factor into the calculation of Santiago's criminal history

score. The court also highlighted that because the majority of

these arrests resulted in dismissals, Santiago had enjoyed

significant leniency from the state courts. The district court

was also well aware of the fact that Santiago did not qualify as

a career offender under the sentencing guidelines because of a

technicality.11 These factors readily support our conclusion that

10 In United States v. Cortés-Medina, we recently recognized that
our precedents expressed in dicta that a series of arrests may
"'legitimately suggest a pattern of unlawful behavior even in the
absence of any convictions.'" No. 14-1101, 2016 WL 2755987, at
*3 (1st Cir. May 12, 2016) (citations omitted). Despite our
previous statements, we counseled sentencing courts against
relying on this dicta moving forward. Id. Nonetheless, we
concluded that in the absence of a prior warning, it was not plain
error for the district court to consider the defendant's arrest
record.

Santiago failed to advance any argument that the district court
impermissibly relied on his arrest record during sentencing,
thereby waiving his argument. As a result, we need not enter into
that discussion here. Notwithstanding Santiago's waiver, we note
that had Santiago advanced such a claim on appeal, it would be
subject to plain error review because he failed to raise it below.
See United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).
Thus, applying the reasoning employed by the panel in Cortés-
Medina, we would similarly conclude that it was not plain error
for the sentencing court to take Santiago's arrest record into
account. We also emphasize that Santiago's sentence was not
exclusively premised on his arrest record. The sentencing court
justified the imposed variance after the permissible consideration
of Santiago's previous convictions, as well as the fact that
Santiago did not qualify as a career offender under the sentencing
guidelines because of a technicality.
11 Although a sentencing court is obligated to provide plausible

-15-
the court's sentence was largely premised on an understanding that

Santiago's criminal history score severely underrepresented his

criminal behavior.

Santiago also contends that the district court's imposed

variance is "not modest" and requires that the court provide a

compelling reason to justify it. He correctly notes that "the

greater a deviation from the GSR, the more compelling the

sentencing court's justification must be." Del Valle-Rodríguez,

761 F.3d at 177 (citing United States v. Smith, 445 F.3d 1, 4 (1st

Cir. 2006)). Here, the sentencing court sufficiently indicated

that Santiago's sentence was necessary because his CHC did not

properly reflect his previous and numerous criminal

transgressions. In doing so, the sentencing court made clear that

Santiago's situation is distinct from the norm. See id. As such,

and coherent reasoning for a variance, it is not required to be
pedantic in its reasoning. Del Valle-Rodríguez, 761 F.3d at 177.
We may infer a district court's reasoning "by comparing what was
argued by the parties or contained in the pre-sentence report with
what the judge did." United States v. Rivera-Clemente, 813 F.3d
43, 50 (1st Cir. 2016), petition for cert. filed, (U.S. May 5,
2016) (No. 15-9248) (citations omitted). At the sentencing
hearing, the Government explained that Santiago had a prior
controlled substance offense from 2010. In addition to that
conviction, Santiago pleaded guilty to robbing a CitiFinancial
branch on July 31, 2011, which was approximately two weeks before
the Banco Popular robbery. Because Santiago pleaded guilty to
robbing the CitiFinancial branch after the jury found him guilty
for robbing the Banco Popular branch in this case, Santiago did
not qualify as a career offender. See U.S.S.G. § 4B1.2(c).

-16-
we are satisfied that the court sufficiently justified the imposed

variance.12

Given the district court's preoccupation that Santiago's

criminal history score did not adequately reflect his criminal

past, we can reasonably infer that the court was concerned with

Santiago's potential for recidivism, as well as the need to protect

the public. Thus, the court could conclude that Santiago's

extensive criminal antecedents and the state court's leniency

resulted in Santiago's failure to respect the law and necessitated

an above-guidelines sentence in order to prevent future crimes.

Furthermore, the district court did not double count

Santiago's criminal history. To the extent that the district

court may have taken into account any of Santiago's crimes that

were already factored into his criminal history score, the court

did not utilize the same factor twice to calculate his GSR.

Instead, the court took into account those crimes that factored

into his criminal history score to calculate his GSR and then

12 We also note that in Zapete-García, the sentencing court
imposed a forty-eight month sentence when the top end of the GSR
was six months. 447 F.3d at 58-59. In other words, the sentencing
court imposed a variance of 800 percent. Here, the district court
imposed a sentence that was thirty-three months over the top end
of the GSR, which is significantly more modest. This distinction
is of import because, as we already noted, "the greater a deviation
from the GSR, the more compelling the sentencing court's
justification must be." Del Valle-Rodríguez, 761 F.3d at 177
(citing Smith, 445 F.3d at 4).

-17-
considered all the 18 U.S.C. § 3553 factors, which included his

history and characteristics. See United States v. Romero-

Galíndez, 782 F.3d 63, 72 n.8 (1st Cir. 2015).

Similarly, the district court did not double count the

elements of the bank robbery offense. Rather, the district court

noted that Santiago brandished his weapon at bank employees and

customers and never "expressed remorse or empathy for the people

at the bank or the tellers that he held at gunpoint." It is beyond

cavil that this proclamation was not, in effect, double counting

the bank robbery elements.13

13 It is well established that district courts may take into
account a defendant's lack of remorse during sentencing. See
United States v. Cruzado–Laureano, 527 F.3d 231, 237 (1st Cir.
2008). Surprisingly, Santiago does not call our attention to the
fact that he did write a letter asking for forgiveness and
expressing regret for the Banco Popular robbery. In any event,
Santiago's efforts would have been unsuccessful if he had. While
it is true that Santiago did express regret for the Banco Popular
robbery in his note, he later disavowed that statement and denied
committing the robbery. Moreover, the district court permissibly
opted to consider Santiago's refusal to recognize the offense of
conviction during sentencing. See United States v. McClain, 2
F.3d 205, 207 (7th Cir. 1993). Thus, we cannot find that the
district court committed clear error in concluding that Santiago
lacked remorse for the commission of the offense. See United
States v. Maisonet-González, 785 F.3d 757, 765 (1st Cir. 2015)
("We will not find clear error unless 'on the entire evidence [we
are] left with the definite and firm conviction that a mistake has
been committed.'" (quoting United States v. Brown, 298 F.3d 120,
122 (1st Cir. 2002))).

Neither do we agree with Santiago's contention that the fact
that he was crying during sentencing necessarily reflected that he
felt remorseful. While tears may be an adequate expression of
remorse in some circumstances, they are not necessarily so in every

-18-
 Santiago also argues that his sentence was substantively

unreasonable. As previously stated, Santiago was sentenced to 120

months' imprisonment as to Count One and eighty-four months as to

Count Two, to be served consecutively. Although the district

court handed out a considerable sentence, it was clearly less than

half than the statutory maximum and outlined a plausible rationale

that falls "within the expansive universe of reasonable

sentences." United States v. King, 741 F.3d 305, 308 (1st Cir.

2014).

Additionally, Santiago's personal characteristics

support the imposed variance. United States v. Santiago-Rivera,

744 F.3d 229, 234 (1st Cir. 2014) ("A sentencing court's reasons

for a variance 'should typically be rooted either in the nature

and circumstances of the offense or the characteristics of the

offender.'" (quoting Martin, 520 F.3d at 91)). The district court

noted that Santiago's criminal history was not adequately

reflected by the GSR and that he was on probation when he committed

the robbery at issue. These considerations militate in favor of

a higher sentence. Given Santiago's criminal history, the fact

that he was on probation at the time, and that he robbed two

circumstance. Santiago may have been crying out of self-pity or
because of the impending punishment. As a result, we are unable
to conclude that based on this record, Santiago's tears, without
more, constituted an adequate expression of remorse.

-19-
different banking institutions within weeks of each other, the

district court could conclude that the above-guidelines sentence

was necessary to promote respect for the law and deter further

criminal conduct.

Accordingly, we find that the imposed sentence was

procedurally and substantively reasonable.

V.

For the foregoing reasons, we affirm the judgment below,

without prejudice to Santiago's right to raise his claim of

ineffective assistance of counsel in a post-conviction relief

proceeding brought pursuant to 28 U.S.C. § 2255.

Affirmed.

-20-