United States Court of Appeals
For the First Circuit
No. 16-1695
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ MATOS-DE-JESÚS,
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
Howard, Chief Judge,
Selya and Lynch, Circuit Judges.
Elizabeth A. Billowitz on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Francisco A. Besosa-Martínez, Assistant
United States Attorney, on brief for appellee.
May 5, 2017
SELYA, Circuit Judge. With respect to some firearms
charges, the sentencing guidelines provide that if the offense of
conviction involves three or more guns, the defendant's offense
level is to be enhanced by a specified number of levels. See USSG
§2K2.1(b)(1). Here, the offenses of conviction involved two
firearms, and the sentencing court, recognizing that the guideline
enhancement was inapplicable, considered the second firearm as an
aggravating factor in imposing an upwardly variant sentence.
In this appeal, defendant-appellant José Matos-de-Jesús
argues, inter alia, that the sentencing guidelines already account
for the presence of both guns and, therefore, that the sentencing
court erred in considering his possession of the second gun as
part of the groundwork for the upward variance. Discerning no
error, we affirm.
The facts are straightforward. In October of 2015,
Puerto Rico police pulled over the appellant's car (which the
appellant was driving) after noticing a problem with the license
plate. When a passenger opened the glove compartment to retrieve
the registration, the officers spotted at least one loaded Glock
magazine. When queried, the appellant admitted that he did not
have a firearms permit, and the officers ordered him out of the
car. As he stepped out, they removed a Glock pistol from his
waistband. The gun had been "chipped," that is, modified to fire
automatically.
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After a vehicle search, see United States v. Panitz, 907
F.2d 1267, 1271 (1st Cir. 1990) (discussing "vehicle exception" to
warrant requirement), the police discovered a second Glock pistol
(also "chipped"), four loaded high-capacity magazines, and more
than 100 loose rounds of ammunition. During the ensuing arrest,
the appellant threatened to kill one of the arresting officers
upon his release.
In due course, a federal grand jury sitting in the
District of Puerto Rico handed up an indictment charging the
appellant with one count of possession of firearms by a convicted
felon, see 18 U.S.C. § 922(g)(1), and one count of possession of
machine guns, see id. § 922(o). Notably, each count of the
indictment referenced the appellant's possession of both of the
seized firearms. The appellant entered a straight guilty plea to
both counts.
At sentencing, the court heard arguments of counsel and
the appellant's allocution. Without objection, it set the
appellant's total offense level at 19, assigned him to criminal
history category IV, and calibrated his guideline sentencing range
at 46 to 57 months. After mulling the sentencing factors limned
in 18 U.S.C. § 3553(a), the court varied upward and imposed a 72-
month term of immurement. It explained that the upward variance
reflected in significant part the appellant's possession of not
one, but two, guns. The court added, though, that the upwardly
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variant sentence also took into account the presence of several
other aggravating factors, such as the appellant's extensive
criminal history and the fact that he had threatened a police
officer during his arrest.
The appellant objected to his sentence, in general
terms, as both procedurally and substantively unreasonable. The
district court overruled these objections. This timely appeal
followed.
Appellate review of claims of sentencing error entails
a two-step pavane. See United States v. Martin, 520 F.3d 87, 92
(1st Cir. 2008). Under this framework, we first address any
assignments of procedural error. See id. If the sentence passes
procedural muster, we then address any challenge to its substantive
reasonableness. See id. Here, the appellant advances claims of
both procedural and substantive error.
The appellant's most loudly bruited procedural claim is
that the sentencing court blundered when it used his possession of
two firearms as part of the groundwork for an upward variance. He
starts with the uncontroversial premise that the sentencing
guidelines direct courts to add additional levels to a defendant's
offense level when the defendant possesses three or more guns in
connection with the offense of conviction. See USSG §2K2.1(b)(1).
With this premise as a starting point, he asserts that the
guidelines treat the "possession of one or two firearms . . . the
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same," and insists, a fortiori, that the second gun already was
factored into his guideline range. Building on this less-than-
sturdy foundation, he concludes that the sentencing court's
decision to vary upward based on that fact amounted to
impermissible double-counting. See United States v. Sepúlveda-
Hernández, 817 F.3d 30, 34-35 (1st Cir. 2016).
The appellant objected below on procedural grounds, but
his objection was altogether generic, not specific. He did not
allude to, or even mention, the specific claim of error that he
now seeks to raise. "A general objection to the procedural
reasonableness of a sentence is not sufficient to preserve a
specific challenge to any of the sentencing court's particularized
findings." United States v. Soto-Soto, ___ F.3d ___, ___ n.1 (1st
Cir. 2017) [No. 16-1444, slip op. at 6 n.1] (collecting cases);
accord United States v. Ahrendt, 560 F.3d 69, 76 (1st Cir. 2009)
(holding that because "generic objections" do not afford a
sentencing court sufficient notice, such objections are inadequate
to preserve specific claims of sentencing error). Hence, our
review of this claim is for plain error. Under that formidable
standard, the appellant must show "(1) that an error occurred (2)
which was clear or obvious and which not only (3) affected [his]
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). The appellant's
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challenge fails at the first step of plain error review: there was
no error, plain or otherwise.
The claim is wrong on its face. The sentencing
guidelines make no provision for the presence of two guns during
the commission of an offense under either 18 U.S.C. § 922(g)(1) or
18 U.S.C. § 922(o). Thus, taking the second gun into account as
part of the mix of factors to be considered at sentencing cannot
conceivably be double-counting.1 See Sepúlveda-Hernández, 817 F.3d
at 34-35. Moreover, the presence of that gun was obviously
relevant to the nature of the crime. Consequently, the district
court did not err in giving weight to that fact.
In this regard, we find instructive the Supreme Court's
recent decision in Dean v. United States, 137 S. Ct. 1170 (2017).
There, the Court considered the degree of discretion afforded to
a judge called upon to impose sentence for a violation of 18 U.S.C.
§ 924(c), which creates a separate offense for the use or
possession of a firearm in connection with a drug-trafficking crime
and requires a mandatory minimum sentence for the firearm offense.
This mandatory minimum sentence must be imposed consecutively to
any sentence imposed for the underlying crime. The Court was
1We hasten to add that, even if double-counting occurred, it
would not necessarily require vacating the appellant's sentence.
See, e.g., United States v. Zapata, 1 F.3d 46, 47 (1st Cir. 1993)
(noting that, "[i]n the sentencing context, double counting is a
phenomenon that is less sinister than the name implies" and is
often "perfectly proper").
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confronted with the question of whether, in calculating a sentence
for the underlying offense, the sentencing judge must close his
eyes to the fact that the defendant will also serve a consecutive
mandatory minimum sentence for the firearms offense. See Dean,
137 S. Ct. at 1174. The Court held that, in the absence of
statutory language directing the sentencing judge to ignore the
requirement for a consecutive mandatory minimum sentence, the
judge may consider that fact in his sentencing calculus. See id.
at 1175-78.
The Court made pellucid that sentencing judges "have
long enjoyed discretion in the sort of information they may
consider when setting an appropriate sentence." Id. at 1175.
Without an express prohibition to the contrary, a sentencing judge
may therefore consider any factor that reasonably relates to the
concerns limned in 18 U.S.C. § 3553(a). See id. at 1175-76.
As applied here, the reasoning of Dean defenestrates the
appellant's argument that the court below could not take into
account the second gun in its application of the section 3553(a)
factors. Neither a federal criminal statute nor the sentencing
guidelines forbids a sentencing court from considering the
presence of a second gun when imposing sentence for either a
section 922(g)(1) or a section 922(o) offense. We hold, therefore,
that the court below acted well within the encincture of its
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discretion in considering that fact when it sentenced the
appellant.
Next, the appellant suggests that the sentencing court
committed procedural error by inadequately explaining its reasons
for imposing the upward variance.2 This specific suggestion is
made for the first time on appeal and, thus, engenders plain error
review. See United States v. Bermúdez-Meléndez, 827 F.3d 160, 164
(1st Cir. 2016). Plain error, though, is plainly absent.
To be sure, a sentencing court's burden to explain its
sentence increases the more that it deviates from the guideline
range. See Martin, 520 F.3d at 91. Even so, a variant sentence
may be "based on a complex of factors whose interplay and precise
weight cannot . . . be precisely described." Id. at 92 (citation
omitted). That is the situation here; and given this reality, the
sentencing court had no need to "be precise to the point of
pedantry." United States v. Vargas-García, 794 F.3d 162, 166 (1st
Cir. 2015) (quoting United States v. Turbides-Leonardo, 468 F.3d
34, 40 (1st Cir. 2006)). In such circumstances, it ordinarily
2 In part, the appellant argues that, because the sentencing
court relied on the presence of the second gun — which he contends
was already factored into his guideline range — the court was
obligated to provide an additional explanation for the upward
variance. See United States v. Zapete-Garcia, 447 F.3d 57, 60
(1st Cir. 2006). That argument fails for the reasons already
discussed, and we make no further reference to it.
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suffices to satisfy the burden of explanation if the court
identifies the primary reasons underpinning its decision. See id.
That burden was carried here. Before imposing the
challenged sentence, the court below discussed the appellant's
lengthy criminal history, which included a conviction for second-
degree murder and an array of weapons and drug offenses. The court
bemoaned the fact that the appellant had made no apparent effort
to "liv[e] a law abiding life." It added that even though "he
passed most of his adult life in jail," he continued to reoffend.
So, too, the court indicated that it was giving weight to the fact
that the appellant had threatened a police officer at the time of
his arrest. Last — but surely not least — the court voiced
particular concern about the fact that the appellant, a previously
convicted felon, possessed two automatic weapons. The court found
this fact especially disconcerting due to the prevalence of gun
violence in Puerto Rico and the Commonwealth's rising murder rate.
See United States v. Flores-Machicote, 706 F.3d 16, 22-23 (1st
Cir. 2013) (approving use of similar approach). Given the clarity
of these statements, we find the sentencing court's explanation of
the appellant's variant sentence to be more than adequate on plain
error review.
This brings us to the appellant's claim, preserved
below, that his sentence is substantively unreasonable.
Specifically, he submits that his background did not warrant the
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substantial upward variance and that the court misjudged the
likelihood that he would reoffend. Our review is for abuse of
discretion. See Gall v. United States, 552 U.S. 38, 51 (2007);
Martin, 520 F.3d at 92.
As a general matter, a reviewing court is not at liberty
to second-guess a sentencing court's reasoned judgments about
matters committed to the sentencing court's discretion. See United
States v. Clogston, 662 F.3d 588, 593 (1st Cir. 2011). Consistent
with this principle, the substantive reasonableness of a sentence
turns on whether the sentencing court articulated "a plausible
sentencing rationale" and reached "a defensible result." Martin,
520 F.3d at 96. There is more than one reasonable sentence in
virtually any case, and we will vacate a procedurally correct
sentence as substantively unreasonable only if it lies "outside
the expansive boundaries" that surround the "universe" of
reasonable sentences. Id. at 92. This is a highly deferential
standard of review, and it applies full-bore to non-guideline
sentences. See Vargas-García, 794 F.3d at 167.
As we already have explained, the sentencing court
expounded upon the appellant's extensive and violent criminal
history, his predilection to reoffend, and the gravity of the
offenses of conviction (which was particularly concerning given
the community in which they took place). The court also noted the
presence of the second gun and the cascade of bullets found in the
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appellant's car. We think that these observations, taken
collectively, comprise a plausible sentencing rationale.
The sentencing court also reached a defensible result.
While the sentence surpassed the top of the guideline range, "even
a substantial variance does not translate, ipso facto, into a
finding that the sentence is substantively unreasonable." Flores-
Machicote, 706 F.3d at 25. Context matters, see id., and the
sentence in this case is responsive to the nature and circumstances
of the offense, the characteristics of the offender, the importance
of deterrence, and the need for condign punishment. In light of
the facts and circumstances previously discussed, there is no
principled way that we can say that a 72-month sentence falls
outside the expansive universe of substantively reasonable
sentences.
We need go no further. For the reasons elucidated above,
the challenged sentence is
Affirmed.
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