Not for Publication in West's Federal Reporter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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