Not For Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 15-1755
UNITED STATES OF AMERICA,
Appellee,
v.
PEDRO VÁZQUEZ-MÉNDEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Torruella, Selya and Thompson,
Circuit Judges.
Elizabeth Billowitz on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, on brief for appellee.
July 11, 2016
SELYA, Circuit Judge. Defendant-appellant Pedro
Vázquez-Méndez challenges his upwardly variant sentence on both
procedural and substantive grounds. Discerning no reversible
error, we affirm.
The critical facts are uncontested. On November 26,
2014, the appellant was operating a motor vehicle on a public
highway in Ponce, Puerto Rico. Police officers attempted to pull
him over, but the appellant ignored them and sped away. When the
appellant eventually stopped, a passenger jumped out of his vehicle
and ran, brandishing a firearm. The police observed — in plain
sight within the vehicle — a magazine loaded with rounds of
ammunition and a clear bag of a substance later confirmed to be
marijuana. A subsequent search revealed that the appellant was
also in possession of a quantity of heroin.
In due course, a federal grand jury sitting in the
District of Puerto Rico returned a five-count indictment against
the appellant and his passenger (who by then had been apprehended).
The appellant was charged with various firearms and drug-related
offenses. After initially maintaining his innocence, the
appellant entered into a plea agreement (the Agreement) with the
government and pleaded guilty to two of the counts lodged against
him: knowingly possessing a firearm in furtherance of a drug-
trafficking crime (count 1), see 18 U.S.C. § 924(c), and possessing
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marijuana with intent to distribute (count 3), see 21 U.S.C.
§ 841(a)(1).
In pertinent part, the Agreement provided that the
remaining charges against the appellant would be dismissed and
that the parties would jointly recommend a 60-month incarcerative
sentence on the firearms charge. The Agreement also contained a
waiver-of-appeal clause, which provided that the appellant would
waive his right to appeal if sentenced in accordance with the
sentencing recommendation memorialized in the Agreement.
The district court accepted the plea, and the probation
department compiled a presentence investigation report (the PSI
Report). The Report noted that the firearms offense limned in
count 1 carried a statutory mandatory minimum term of imprisonment
of 60 months, to run consecutive to the sentence imposed on any
other count. See 18 U.S.C. § 924(c). The Report further noted
that the guideline sentencing range for the marijuana distribution
charge was 0 to 6 months. Finally, the Report noted that — based
on the seriousness of the offense charged in count 1 — the
sentencing court could consider an upward departure under USSG
§5K2.21.
The disposition hearing was convened on June 2, 2015.
The government stood by the sentencing recommendation in the
Agreement and urged the imposition of a 60-month sentence. The
court demurred, focusing primarily on the perceived need for
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deterrence and the appellant's unattractive criminal history. It
paid particular heed to the appellant's prior convictions for drug
and gun offenses and to the fact that he had committed the instant
offenses while he was still serving a supervised release term
referable to one of those convictions. In the end, the court
sentenced the appellant to a 72-month term of immurement on count
1 and a 6-month term of immurement on count 3.1 The court specified
that these terms would run consecutively with each other and
consecutive to the 35-month term of imprisonment separately
imposed for the revocation of the appellant's supervised release.
This timely appeal ensued. The parties acknowledge that
the waiver-of-appeal clause does not pretermit this appeal because
the sentence imposed exceeded the parameters of the sentencing
recommendation contained in the Agreement. See, e.g., United
States v. Rivera-González, 776 F.3d 45, 48-49 (1st Cir. 2015). We
agree.
"We review challenges to the reasonableness of a
sentence in line with a two-step pavane." Rivera-González, 776
F.3d at 48; see United States v. Martin, 520 F.3d 87, 92 (1st Cir.
1 Although the Agreement contained a joint recommendation for
a non-incarcerative sentence on the marijuana distribution charge
(count 3), the appellant's brief makes no separate challenge to
the six-month sentence imposed on that count. Thus, even though
the appellant from time to time refers to his sentence as "a 78-
month sentence," we treat his appeal as challenging only the
upwardly variant sentence imposed on count 1, not the within-the-
range sentence imposed on count 3.
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2008). First, we examine claims of procedural error. See Rivera-
González, 776 F.3d at 48. Once this hurdle is cleared, we proceed
to weigh any challenge to the substantive reasonableness of the
sentence. See id.
In conducting this tamisage, our overall review is for
abuse of discretion. See Martin, 520 F.3d at 92. Claims of
procedural error, however, trigger a more nuanced standard. With
respect to such claims, "we assay the district court's factfinding
for clear error and afford de novo consideration to its
interpretation and application of the sentencing guidelines."
United States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013).
This standard may, of course, be altered when a party has failed
seasonably to object in the proceedings below. In that event,
review is for plain error. See United States v. Ruiz-Huertas, 792
F.3d 223, 226 (1st Cir.), cert. denied, 136 S. Ct. 258 (2015).
Plain error is not an appellant-friendly standard. It
requires an appellant to establish "(1) that an error occurred (2)
which was clear or obvious and which not only (3) affected the
defendant's substantial rights, but also (4) seriously impaired
the fairness, integrity, or public reputation of judicial
proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st Cir.
2001).
With these standards of review in place, we turn first
to the appellant's specific claims of procedural error: his claim
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that the district court did not sufficiently weigh key sentencing
factors and his claim that the district court based its sentencing
determination on improper considerations. Because neither of
these claims was preserved below, our review is only for plain
error.
We start with the appellant's contention that the
sentencing court failed to give due consideration to key factors
made relevant by 18 U.S.C. § 3553(a) — specifically, the
appellant's personal characteristics and the nature and
circumstances of the offense. This contention is woven entirely
out of speculation: at sentencing, the district court explicated
both the appellant's personal history and his litany of previous
offenses. The court likewise noted that the offenses of conviction
occurred a mere six months into the appellant's ongoing supervised
release term. No more was exigible: it is readily apparent that
the appellant's "real complaint is not that the court failed to
consider the section 3553(a) factors, but that the court did not
assign the weight to certain factors that the [appellant] thought
appropriate." Ruiz-Huertas, 792 F.3d at 227. Seen in this light,
plain error is plainly absent. See id.; see also United States v.
Clogston, 662 F.3d 588, 593 (1st Cir. 2011) (explaining that "the
weighting of [sentencing] factors is largely within the court's
informed discretion").
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The appellant's remaining claim of procedural error
posits that the district court improperly premised the sentence on
community-based and geographic factors (including concerns about
the local crime rate) rather than on an individualized assessment
of his circumstances. This claim, too, lacks force.
We have made pellucid that a "sentencing court may take
into account the characteristics of the community in which the
crime took place when weighing the offense's seriousness and the
need for deterrence." United States v. Zapata-Vázquez, 778 F.3d
21, 23 (1st Cir. 2015). Thus, community-based factors and the
concomitant need for deterrence are "widely recognized" as
important ingredients in the sentencing calculus. Flores-
Machicote, 706 F.3d at 23; accord Rivera-González, 776 F.3d at 50-
51.
To be sure, a sentencing court may not place too heavy
a thumb on the scale: it may not unduly weigh community-based
considerations to the detriment of case-specific factors. But
within wide limits, the weighing of relevant section 3553(a)
factors, including community-based considerations, remains within
the sentencing court's sound discretion. See Zapata-Vázquez, 778
F.3d at 24; Flores-Machicote, 706 F.3d at 23. The case at hand
falls comfortably within the encincture of this discretion.
Here, the court explicitly considered the appellant's
personal history and the nature and circumstances of the offenses
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of conviction. Its consideration of the local crime rate and the
prevalence of gun violence in Puerto Rico was relatively brief and
tied specifically to the need for deterrence; it hardly came "at
the expense of" case-specific factors. Zapata-Vázquez, 778 F.3d
at 24. In the last analysis, we discern nothing approaching plain
error in the sentencing court's references to local conditions in
Puerto Rico.
This brings us to the appellant's claim that his sentence
is substantively unreasonable. Though this claim was not raised
below, the standard of review for an unpreserved challenge to the
substantive reasonableness of a sentence is uncertain. See United
States v. Pérez, 819 F.3d 541, 547 (1st Cir. 2016); Ruiz-Huertas,
792 F.3d at 228 & n.4. Here, however, we need not resolve this
uncertainty. Even assuming, favorably to the appellant, that the
abuse of discretion standard prevails, the challenged sentence
easily passes muster.
The appellant's principal asseveration is that his
personal history "does not justify additional punishment beyond
that requested by the [g]overnment and suggested by the
guidelines." The lens through which we must view this asseveration
is well-defined: a sentence is substantively reasonable when it
rests on a "plausible sentencing rationale" and betokens a
"defensible result." Martin, 520 F.3d at 96. The mere fact that
the sentencing court varies upward from the guidelines does not
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make a sentence substantively unreasonable.2 See Flores-Machicote,
706 F.3d at 25 ("[E]ven a substantial variance does not translate,
ipso facto, into a finding that the sentence is substantively
unreasonable.").
Challenging a sentence as substantively unreasonable is
an uphill climb. We will vacate a sentence on this ground "if —
and only if — the sentencing court's ultimate determination falls
outside the expansive boundaries of [the] universe" of reasonable
sentences. Martin, 520 F.3d at 92.
In this instance, the sentencing court provided an
eminently plausible rationale for imposing a 72-month sentence.
That rationale emphasized the appellant's checkered criminal past,
the commission of the offenses of conviction only six months into
a supervised release term for an earlier conviction, and the patent
need for deterrence. By the same token, a 72-month term of
immurement is wholly defensible. Though the sentence varied upward
from the guideline sentence, that 12-month variance is entirely
commensurate with the aggravating factors that are apparent in
this case.
2 As we recently have explained, the statutory mandatory
minimum sentence applicable here (60 months) is the guideline
sentence. See United States v. Bermúdez-Meléndez, ___ F.3d ___,
___ (1st Cir. 2016) [No. 14-2209, slip op. at 7]. When, as now,
"application of the sentencing guidelines yields a singular
guideline sentence rather than a guideline sentencing range
. . . a sentence in excess of the guideline sentence should be
treated as an upward variance." Id.
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Nor does the fact that the district court chose to
deviate from the parties' joint sentencing recommendation render
the sentence substantively unreasonable. As we have explained,
the relevant inquiry must focus on the substantive reasonableness
of the sentence actually imposed, not on the relative merits of
that sentence as contrasted with a different sentence mutually
agreed to by the parties. Cf. United States v. Bermúdez-Meléndez,
___ F.3d ___, ___ (1st Cir. 2016) [No. 14-2209, slip op. at 9]
("Although a sentencing court typically has a duty to explain why
it selected a particular sentence, it has 'no corollary duty to
explain why it eschewed other suggested sentences.'" (quoting
United States v. Vega-Salgado, 769 F.3d 100, 104 (1st Cir. 2014))).
That ends this aspect of the matter. It is common ground
that "[r]easonableness entails a range of potential sentences, as
opposed to a single precise result." United States v. Dixon, 449
F.3d 194, 204 (1st Cir. 2006). Here, the challenged sentence
unarguably falls within the range of reasonable sentences.
We need go no further. For the reasons elucidated above,
the sentence is
Affirmed.
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