Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 14-2014
UNITED STATES,
Appellee,
v.
CHRISTIAN SANTOS-RIVERA,
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, Stahl, and Thompson,
Circuit Judges.
Luis Rafael Rivera and Luis Rafael Rivera Law Offices on
brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Juan Carlos Reyes-Ramos, Assistant United States
Attorney, on brief for appellee.
August 16, 2016
STAHL, Circuit Judge. Christian Santos-Rivera
("Santos") pled guilty to the unlawful possession of a
machinegun and now appeals his sentence. We affirm.
I. Facts & Background
On January 8, 2014, Santos and his wife had an
altercation with another female, during which Santos fired
several warning shots. The next day, authorities executed a
warrant for his arrest and, with Santos' consent, searched a
vehicle used in the incident. The search revealed a gun used by
Santos, a Glock pistol that had been unlawfully modified so that
it could operate as a machinegun, automatically shooting more
than one shot, without manual reloading, by a single function of
the trigger.
Thereafter, Santos was indicted for possession of a
machinegun, in violation of 18 U.S.C. § 922(o), and subsequently
pleaded guilty pursuant to a plea agreement wherein the parties
recommended a sentence of 24 to 30 months' imprisonment. In the
Presentence Investigation Report ("PSR"), the probation officer
calculated a Sentencing Guidelines Range ("SGR") of 30 to 37
months. The PSR also recounted Puerto Rico's high firearms and
violent crime rate, noted that the offense may be more serious
in Puerto Rico than the Sentencing Commission considered in
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formulating the guidelines, and pointed out the district court's
discretion to vary upward from the SGR on this basis.
At sentencing, the court accepted the PSR's
calculations, found that a guidelines sentence would not satisfy
the factors in 18 U.S.C. § 3553(a), and sentenced Santos to 48
months' imprisonment. Santos never objected to the PSR and did
not raise any objections at his sentencing. He now appeals.
II. Analysis
We review sentencing decisions for procedural and
substantive reasonableness, ordinarily employing a deferential
abuse-of-discretion standard. See United States v. Arroyo-
Maldonado, 791 F.3d 193, 197 (1st Cir. 2015). Because Santos
failed to contemporaneously object in the district court, we
review his unpreserved procedural reasonableness claim under the
plain-error standard. See id. This "entails four showings: (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." Id. (quoting United States
v. Medina–Villegas, 700 F.3d 580, 583 (1st Cir. 2012)).
As for his unpreserved substantive reasonableness
claim, the standard of review is less certain. See, e.g.,
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United States v. Ruiz-Huertas, 792 F.3d 223, 228 (1st Cir.),
cert. denied, 136 S. Ct. 258 (2015). We need not resolve this
ambiguity today, however, because even if the abuse-of-
discretion standard applied, Santos' claim would fail.
A. Procedural Reasonableness
Santos contends that the district court did not
adequately justify its upward variance. Because we find that
the district court committed no error, plain or otherwise, this
argument fails.
"[T]he incidence of particular crimes in the relevant
community appropriately informs and contextualizes the need for
deterrence." United States v. Narváez-Soto, 773 F.3d 282, 286
(1st Cir. 2014) (quoting United States v. Flores-Machicote, 706
F.3d 16, 23 (1st Cir. 2013)) (ellipsis omitted). For example,
"if a community is relatively free of violent crime, a
sentencing judge reasonably may . . . see no need for a
heightened level of deterrence." Flores-Machicote, 706 F.3d at
23. "If, however, violent crime is running rampant, the judge
reasonably may conclude that the need for deterrence is great--
and this may translate into a stiffer sentence." Id.
At the hearing, the judge clearly considered the
§ 3553(a) factors. See United States v. Torres-Landrúa, 783
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F.3d 58, 68 n.12 (1st Cir. 2015) ("The sentencing judge's
statement that he considered all the 18 U.S.C. § 3553(a)
sentencing factors 'is entitled to significant weight.'"
(quoting United States v. Santiago-Rivera, 744 F.3d 229, 233
(1st Cir. 2014))). And, contrary to what Santos suggests, the
judge also gave individualized attention to his case,
emphasizing, for example, how Santos not only possessed a
machinegun but also fired it during an altercation and so put
the lives of others at risk.
Finally, the judge clearly explained the rationale for
the upward variance, explicitly noting the significance of the
deterrence factor in this case given Puerto Rico's distinct
difficulties in curtailing its high incidence of gun-related
crimes. See 18 U.S.C. § 3553(a)(2)(B).
Thus, Santos' procedural challenge fails.
B. Substantive Reasonableness
Santos also argues that his sentence is substantively
unreasonable. Again, there is no error to be found and so
Santos' argument fails.
"[T]he linchpin of a reasonable sentence is a
plausible sentencing rationale and a defensible result." United
States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008). "Because we
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have already found the district court's sentencing rationale to
rest within the range of acceptable discretion, 'we limit our
review to the question of whether the sentence, in light of the
totality of the circumstances, resides within the expansive
universe of reasonable sentences.'" United States v. Pedroza-
Orengo, 817 F.3d 829, 837 (1st Cir. 2016) (quoting United States
v. King, 741 F.3d 305, 308 (1st Cir. 2014)).
Given the statutory maximum sentence of ten years, see
18 U.S.C. § 924(a)(2), the degree of the upward variance, and
the circumstances presented in this case, we find no reason to
doubt the substantive reasonableness of the sentence. See
Pedroza-Orengo, 817 F.3d at 837; United States v. Vázquez-
Martínez, 812 F.3d 18, 26 (1st Cir. 2016); United States v.
Pantojas-Cruz, 800 F.3d 54, 62-63 (1st Cir. 2015). On these
facts, Santos' substantive challenge would fail even under the
more forgiving abuse-of-discretion standard.1
1
In something of a parting shot, Santos also suggests that
the judge had to depart downward from the guidelines under
U.S.S.G. § 5H1.3 because of his supposed "mild mental
retardation, issues with poor memory and attention deficit
disorder . . . ." Not only did Santos fail to present this
argument below, but he also failed to adequately develop the
argument in his brief. Consequently, his suggestion goes
nowhere. See, e.g., United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990).
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III. Conclusion
Because the district court's sentencing decision is
procedurally and substantively reasonable, we AFFIRM.
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