United States v. Lugo-Cartagena

Not for Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit

No. 16-1206

UNITED STATES OF AMERICA,

Appellee,

v.

RUBÉN LUGO-CARTAGENA,

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, Thompson, and Barron,
Circuit Judges.

Antonio L. Bisbal-Bultrón, on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney,
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Thomas F. Klumper, Assistant United States
Attorney, Senior Appellate Counsel, on brief for appellee.

July 18, 2017
 THOMPSON, Circuit Judge. Appellant Rubén Lugo-Cartagena

("Lugo") pled guilty to possession of a firearm by a convicted

felon in violation of 18 U.S.C. § 922(g)(1). On appeal, Lugo

challenges his above-Guidelines, 48-month sentence as

unreasonable. Finding no error, we affirm.

BACKGROUND1

A. Investigation

The investigation that eventually resulted in Lugo's

arrest began on June 17, 2015, when narcotics agents with the

Puerto Rico Police Department ("PRPD") conducted surveillance

outside of Lugo's home. The observations made during surveillance

allowed the officers to obtain a search warrant, which was executed

on June 25, 2015.2

As officers approached Lugo's home on that date, they

observed Roger Torres Quiñones ("Roger") and Jose M. Quiñones

1 Because this appeal follows a guilty plea, "we glean the
relevant facts from the change-of-plea colloquy, the unchallenged
portions of the presentence investigation report (PSI Report), and
the record of the disposition hearing." United States v. Vargas,
560 F.3d 45, 47 (1st Cir. 2009).
2 The details of the surveillance that resulted in the
issuance of the search warrant are not provided in the record.
The only description provided comes from the government's
sentencing memorandum, which stated that officers observed
individuals coming out of Lugo's home and selling what appeared to
be illegal drugs to other individuals approaching the home. PRPD
officer Luis Santiago submitted a sworn statement indicating that
the officers observed Lugo inside of his home at all times when
the surveilled drug transactions occurred.

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("Jose") -- Lugo's co-defendants in this case -- exchange what

appeared to be illegal drugs. Jose attempted to flee from the

residence by foot and after a brief chase, officers caught him and

retrieved a fanny pack, which he had attempted to discard, that

contained an automatic Glock pistol, magazines, ammunition, and 34

bags of heroin. Roger, presumably still at Lugo's house, was taken

into custody.

The officers then proceeded into Lugo's home to execute

the search warrant as initially planned and found Lugo in his

living room. During the search, officers found $1,931 in Lugo's

bedroom. The officers also found a Glock pistol modified to fire

in fully automatic mode and magazines loaded with ammunition in a

tool room on the first floor of the home.

Lugo was later interviewed by federal law enforcement

agents, at which time he denied that the Glock pistol and money

found were his, but admitted that one of the co-defendants (Roger)

had been staying with him. The government obtained an arrest

warrant for Lugo and his two co-defendants on the following day

and a complaint was issued, charging Lugo with illegal possession

of a firearm.

Lugo was indicted on July 22, 2015, arraigned in August

of that same year, and initially pled not guilty to the one charge

lodged against him for illegal possession of a firearm. On

September 11, 2015, Lugo moved to change his plea to guilty. At

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his change-of-plea hearing, the magistrate judge found Lugo

competent to knowingly change his plea and Lugo voluntarily pled

guilty to possession of a firearm by a convicted felon in violation

of 18 U.S.C. § 922(g)(1).3 During a subsequent meeting with

probation, Lugo accepted responsibility for the crime, admitting

that he had found the gun shortly before being arrested and had

made a "big mistake" in keeping it.

On January 15, 2015, probation filed an amended

presentence investigation report ("PSI"). The PSI calculated

Lugo's base offense level at 22, pursuant to U.S. Sentencing

Guidelines Manual ("U.S.S.G.") § 2K2.1(a)(3) (U.S. Sentencing

Comm'n 2015), and subtracted three levels for acceptance of

responsibility, pursuant to U.S.S.G. § 3E1.1, which resulted in a

total offense level of 19. Lugo's criminal history included, in

2005, a prior arrest and conviction for conspiracy to possess with

the intent to distribute controlled substances -- a conviction for

which Lugo served a sentence of thirty-seven months' imprisonment

and a term of three years of supervised release. Accordingly, the

PSI calculated Lugo's Criminal History Category at II, pursuant to

U.S.S.G. Chapter 5, Part A. The resulting applicable Guidelines

range, based upon a total offense level of 19 and a Criminal

History Category of II, was 33-41 months.

3 Lugo does not challenge the validity of his change of plea.

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 The PSI also noted other criminal conduct, pending

charges, and other arrests in Lugo's history. The PSI specifically

noted a dismissed state criminal case involving a traffic accident

and a pending state criminal case for possession with intent to

distribute controlled substances. Although noted in the PSI,

neither the dismissed nor pending cases were used to calculate

Lugo's overall Criminal History Category.

The PSI also stated that the district court "may exercise

its discretion by considering a sentence under a variance pursuant

to the provisions of 18 U.S.C. § 3553(a), while taking into

consideration the defendant's history and characteristics, the

nature and circumstances of the offense, as well as the need to

promote respect for the law and afford adequate deterrence for the

crimes committed by the defendant." The PSI noted further that

the court may specifically consider "Puerto Rico's high firearms

and violent crime rate, as well as whether the impact of this

particular offense in Puerto Rico is more serious than that

considered by the Sentencing Commission when it drafted the

guidelines." Lastly, probation also recommended that Lugo remain

"under curfew at his residence of record from 6:00 p.m. to 6:00

a.m. for a period of 6 months" as part of his supervised release.

Lugo filed written objections to the PSI, challenging:

(1) probation's notation that the district court could issue a

variant sentence and (2) probation's recommendation that he be

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subject to a curfew and electronic monitoring as conditions of

supervised release. Lugo reiterated these objections in his

sentencing memorandum while the government requested an above-

Guidelines sentence of 48 months in its sentencing memorandum.

B. Sentencing Hearing

During sentencing, Lugo's attorney raised several

objections to the issuance of an above-Guidelines sentence -- he

argued that:

 the district court should not consider "[t]he high

firearms and violent crime rate in Puerto Rico[, which]

cannot be attributed to [Lugo] solely";

 Lugo "should not be responsible, as stated, for any

antisocial conduct attributed to any third person, other

criminal conduct that is not attributed to him." In

other words, Lugo's attorney argued that Lugo -- who was

only charged with illegal firearm possession -- should

not be punished more severely based on the actions of

his co-defendants who were charged with (and ultimately

pled guilty to) other drug-related offenses;

 neither a curfew nor electronic monitoring should be

imposed as conditions of supervised release because such

restrictions would "not permit Mr. Lugo-Cartagena to

continue running his [lawful] business"; and

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  the court should ignore the government's reference to a

pending state criminal charge for drug possession with

intent to distribute since "no evidence towards that

charge has been presented and there is a presumption of

innocence that is in favor of [Lugo]."

In response, the district court explained that it was

not considering Puerto Rico's high firearms and violent crime rates

"by itself," but as one factor in addition to the PSI, statements

made at the sentencing hearing, Lugo's allocution, and the

sentencing memoranda. With regard to Lugo's argument that he

should not be responsible for the actions of his co-defendants,

the district court responded that although Lugo himself was not

charged with any drug-related offenses, "he was allowing his

residence to be used for illegal acts." As for Lugo's objection

to "the curfew or the home detention being recommended in the

[PSI]," the district court clarified that the condition

recommended was a curfew, "not home detention." With regard to

the government's reference to the pending state court case, the

district court acknowledged and agreed with Lugo's counsel that

Lugo was presumed innocent until proven otherwise, noting that "I

realize that. It's something that is there and the probation

officer has to indicate [it] in his pre-sentence investigation

report." The government reiterated its recommendation of an above-

Guidelines sentence of 48 months "based on [Lugo's] history, prior

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offense and the particular type of firearm that was found,

including the ammunition."

After hearing from Lugo's counsel, the government, and

Lugo himself, the court calculated the applicable Guidelines range

at 33-41 months as indicated in the PSI. The court then proceeded

with its sentencing task. The court noted Lugo's criminal history

as well as the dismissed and pending charges referenced in the

PSI. Specifically, the court noted that while one state court

charge had been dismissed, the remaining and pending drug charge

was set for trial the following January, but was "not relevant

conduct to this case." The court stated that it had considered

the 18 U.S.C. § 3553(a) factors and also explained that deterrence

was an important factor in its sentencing decision because "weapons

like [the automatic Glock pistol] are . . . why the murder rate

. . . is so high" in Puerto Rico.

Following its explanation, the court imposed a variant

sentence of 48 months, finding that an above-Guidelines sentence

"reflect[ed] the seriousness of the offense, promote[d] respect

for the law, protect[ed] the public from further crimes by Mr.

Lugo, and addresse[d] the issues of deterrence and punishment."

The court also imposed a term of three years' supervised release,

which included as conditions of release the imposition of a 6:00

p.m. to 6:00 a.m. curfew and electronic monitoring for the first

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six months of release. Lugo filed this timely appeal, arguing

that the sentence imposed is unreasonable.

DISCUSSION

We review the reasonableness of a sentence for abuse of

discretion. United States v. Maisonet-González, 785 F.3d 757, 762

(1st Cir.), cert. denied sub nom. Maisonet v. United States, 136

S. Ct. 263 (2015). Such review is bifurcated, requiring us to

ensure that the sentence is both procedurally and substantively

reasonable. United States v. Zapata-Vázquez, 778 F.3d 21, 23 (1st

Cir. 2015). However, when reviewing procedural reasonableness,

specifically, "we afford de novo review to the sentencing court's

interpretation and application of the sentencing guidelines, assay

the court's factfinding for clear error, and evaluate its judgment

calls for abuse of discretion." United States v. Ruiz-Huertas,

792 F.3d 223, 226 (1st Cir.), cert. denied, 136 S. Ct. 258 (2015).

The standard of review becomes plain error "[if] a party fails to

preserve claims of error in the court below." Id. Even if we

assume that Lugo properly preserved his reasonableness challenge,

his arguments fail to pass muster even under the more favorable

abuse-of-discretion standard.4

4 The government argues that Lugo waived his right to raise a
reasonableness challenge because both Lugo and his counsel stated
at the sentencing hearing that the defendant was willing to accept
the district court's sentencing decision. We decline to address
the government's argument because even if we assume Lugo's

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A. Procedural Reasonableness

On appeal, Lugo seems to concede that the district court

was free to consider his criminal history, the high rate of violent

crime, as well as "all of the circumstances under which he

committed the offense." Indeed, a district court may properly and

in its discretion consider such community factors in its sentencing

determination. See Zapata-Vázquez, 778 F.3d at 23 (dismissing

appellant's claim that "the district court placed too much emphasis

on the prevalence of firearms and violent crime in Puerto Rico

without regard to the specific circumstances of his case" because

"[i]t is well-settled that the 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. Fields, 858 F.3d 24, 28 (1st

Cir. 2017) ("Our review 'is characterized by a frank recognition

of the substantial discretion vested in a sentencing court.'"

(quoting United States v. Flores-Machicote, 706 F.3d 16, 20 (1st

Cir. 2013))).

Lugo argues that his sentence is nevertheless

"unreasonably high" because the district court "took as a proven

fact that Mr. Lugo-Cartagena permitted others to commit illegal

acts in his residence." Lugo contends that the "conclusion that

reasonableness challenge is not waived, the challenge fails under
the more favorable standard of review.

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[he] permitted others to sell drugs from his residence" was

"unfounded" and an improper basis to impose an above-Guidelines

sentence. See United States v. Del Valle-Rodríguez, 761 F.3d 171,

176 (1st Cir. 2014) (a sentencing court commits procedural error

if it "predicat[es] a sentence on clearly erroneous facts" (citing

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

We review the judge's finding of fact for clear error.

Fields, 858 F.3d at 29. "Clear error review is respectful and

requires that we accept findings of fact and inferences drawn

therefrom unless, 'on the whole of the record, we form a strong,

unyielding belief that a mistake has been made.'" Id. (quoting

United States v. Demers, 842 F.3d 8, 12 (1st Cir. 2016); see also

United States v. Nuñez, 852 F.3d 141, 144 (1st Cir. 2017). We

find no such mistake here.

The consideration of whether Lugo allowed his home to be

used for illegal activity first came up at the sentencing hearing

when Lugo's attorney argued that Lugo should not be held

responsible for any drug-related conduct of his co-defendants.

The following exchange took place:

[COUNSEL FOR LUGO]: Your Honor, we think that
[Lugo] should not be responsible, as stated,
for any antisocial conduct attributed to any
third person, other criminal conduct that is
not attributed to him.

[THE COURT]: Well, he was allowing his
residence to be used for illegal acts.

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 [COUNSEL FOR LUGO]: Your Honor, that's an
assertion that's being made by the --

[THE COURT]: Well, that's why they searched
his residence.

[COUNSEL FOR LUGO]: We understand that that's
why they searched his residence, Your Honor,
but he was not charged for drug conduct. He
was charged for possessing a weapon.

[THE COURT]: I understand, but those are
things that I have to consider.

The government argued that surveillance tapes, which had been

made available to Lugo, revealed individuals selling narcotics in

Lugo's home and that Lugo had admitted that he was the only

resident of the home. The court went on to conclude that Lugo

"was allowing his residence to be used for illegal activities,

especially the selling of illegal drugs."

In reaching this conclusion, the judge noted that the

police had obtained a search warrant for Lugo's home based on

surveillance and that a sworn statement by a police officer

involved in the investigation indicated that Lugo was inside his

residence when the drug transactions were taking place.

Although Lugo contends that there was no evidence of his

knowledge of individuals selling drugs in his home, the

circumstances surrounding Lugo's arrest, his history, and the

whole of the record support the district court's view that he was

aware of the drug activity occurring. See Fields, 858 F.3d at 30

(district court's "on-the-spot judgment is entitled to

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considerable weight" and "[t]hough a different finding may have

been supportable in view of the appellant's history of drug abuse,

the district court was not required to interpret the record in the

manner that the appellant urged"). Lugo had been previously

convicted of conspiracy to possess controlled substances with

intent to distribute and admitted that he, alone, resided in the

home searched. Lugo also admitted that he had allowed one co-

defendant charged with a drug offense (Roger) to stay with him.

And "where there is more than one plausible view of the

circumstances, the sentencing court's choice among supportable

alternatives cannot be clearly erroneous." United States v. Ruiz,

905 F.2d 499, 508 (1st Cir. 1990).5

5On appeal, Lugo also states that the district court "took
into consideration a case whose trial, at the moment of sentencing,
was pending under article 401 of the PR Controlled Substance Act"
and that "[t]he court also took into consideration the nature of
the weapon involved and the incidence of crime in Puerto Rico."
As an initial matter we note that it is unclear whether Lugo takes
issue with the district court's alleged consideration of these
factors. Because Lugo fails to develop any argumentation regarding
these issues, such claims are deemed waived. See United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[i]ssues adverted to in
a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived."). In any event, we find no
error here. First, contrary to Lugo's contentions, the district
court did not take into consideration his pending state court case
at sentencing. In fact the district court explicitly stated that
the pending state court case was "not relevant conduct to this
case." And, as already noted, the district court was free to take
into account the nature of the weapons involved and the incidence
of crime in Puerto Rico. See Flores–Machicote, 706 F.3d at 23
("[T]he incidence of particular crimes in the relevant community
appropriately informs and contextualizes the relevant need for
deterrence."); United States v. Quiñones-Meléndez, 791 F.3d 201,

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B. Substantive Reasonableness

To the extent that Lugo also argues that his sentence is

substantively unreasonable, "[t]he hallmarks of a substantively

reasonable sentence are 'a plausible sentencing rationale and a

defensible result.'" Zapata-Vázquez, 778 F.3d at 24 (quoting

Martin, 520 F.3d at 96). The district court's justification for

its sentence was concise, noting Lugo's criminal history, the

nature and circumstances of the offense, and the need to deter the

illegal possession of guns because of the negative effect that

they have on Puerto Rico's murder rate. See United States v.

Rivera-González, 776 F.3d 45, 51 (1st Cir. 2015) (finding a

sentence substantively reasonable when the sentencing court's

rationale considered the defendant's role as a drug dealer and the

need to deter illegal gun possession). The court also explained

that the variant sentence "reflects the seriousness of the offense,

promotes respect for the law, protects the public from further

crimes by Mr. Lugo, and addresses the issues of deterrence and

punishment." Accordingly, the court offered "a plausible

207 (1st Cir. 2015) (affirming a sentence as reasonable where the
district court took into consideration "the heightened
dangerousness posed by automatic weapons of the sort [the
appellant] had admitted possessing, and the seriousness of firearm
offenses in Puerto Rico.").

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rationale" for its decision to apply a seven-month upward variance

in Lugo's sentence. Flores-Machicote, 706 F.3d at 21 ("When a

court varies from the GSR, its reasons for doing so 'should

typically be rooted either in the nature and circumstances of the

offense or the characteristics of the offender.' In such a

situation, the factors deemed relevant by the sentencing court

'must add up to a plausible rationale' for the sentence imposed

and 'must justify a variance of the magnitude in question.'"

(citations omitted)).

CONCLUSION

For the foregoing reasons, we affirm Lugo's 48-month

sentence.

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