United States v. Contreras-Delgado

United States Court of Appeals
For the First Circuit

No. 17-1962

UNITED STATES OF AMERICA,

Appellee,

v.

ANGEL RAFAEL CONTRERAS-DELGADO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Barron and Selya, Circuit Judges,
and Katzmann,* Judge.

Marie L. Cortés Cortés, was on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Mainon A. Schwartz, Assistant United
States Attorney, on brief for appellee.

January 17, 2019

* Of the United States Court of International Trade, sitting
by designation.
 KATZMANN, Judge. After pleading guilty to a charge of

possessing a machine gun in violation of 18 U.S.C. § 922(o), the

uncontested presentence report(“PSR”) placed defendant-appellant

Angel Rafael Contreras-Delgado (“Contreras-Delgado”) in a federal

guideline sentencing range (“GSR”) of 24 to 30 months’

imprisonment. The district court judge sentenced him to 46 months.

Claiming that this variant sentence is procedurally flawed and

substantively unreasonable, Contreras-Delgado now appeals. We

affirm.

I. BACKGROUND.

Because this appeal follows a guilty plea, we draw the

facts from the change-of-plea colloquy, the undisputed portions of

the PSR, and the transcript of the sentencing hearing. United

States v. Arias-Mercedes, 901 F.3d 1, 4 (1st Cir. 2018). In

January 2017, undercover police officers saw a man, later

identified as Contreras-Delgado, standing outside one of the

apartments in a public housing project in Bayamón, Puerto Rico.

Contreras-Delgado looked at the officers, asked “What’s going on

Man” (translation from Spanish), and lifted his arms, which exposed

a black gun with an extended magazine in his waistband. The

officers identified themselves and asked if Contreras-Delgado had

a firearms license; he replied that he did not. The officers

arrested Contreras and seized the gun. The gun —- a Glock 9-

millimeter (“mm”) pistol -— had been modified to fire multiple

- 2 -
rounds with a single pull of the trigger and was fully loaded with

a 31-round extended magazine. At the time of arrest, the officers

found two more 9-mm magazines next to Contreras-Delgado: another

fully loaded 31-round magazine and a 17-round magazine with 15

rounds of ammunition.

Federal agents questioned Contreras-Delgado after

reading him his rights. Contreras-Delgado admitted that he sold

drugs and had purchased the gun that was in his waistband “for

protection.” He told the agents he knew the pistol was modified

to fire automatically “because he specifically asked for it to be

fully auto when he purchased it.” The firearm also had an

aftermarket barrel installed, was equipped with a high-capacity

31-round magazine, and incorporated a machine gun conversion

device designed to make semiautomatic Glock pistols fire

automatically. No ownership records for the gun could be found.

Contreras-Delgado was indicted for possessing a machine

gun, in violation of 18 U.S.C. § 922(o). He knowingly and

voluntarily entered a straight plea of guilty to possessing a

machine gun as alleged in the indictment. At the change-of-plea

hearing, Contreras-Delgado told the district court of his current

treatment for depression, though he remained competent to plead.

He also indicated that he understood that sentencing would be in

the discretion of the court and could differ from the guidelines

and/or the parties’ sentencing recommendations. Upon Contreras-

- 3 -
Delgado’s motion, the judge issued an order permitting evaluation

of him by a clinical psychologist, Dr. Alexandra Ramos (“Dr.

Ramos”), in support of mitigation of sentence.

The U.S. Probation Office prepared a PSR1 that outlined

the offense conduct described above. Possession of a machine gun

carried a base offense level of 20; the PSR subtracted 3 levels

for acceptance of responsibility, yielding a total offense level

of 17.

Contreras-Delgado was twenty-two years old when he was

arrested for the instant offense. By that time, he had two

juvenile adjudications: one for pointing a bladed weapon at four

other children and threatening to stab them, and another for

stealing from his mother and threatening to kill both her and his

grandmother. He had also been arrested as an adult for two counts

of distributing a controlled substance, but those charges were

dismissed pursuant to Puerto Rico’s Speedy Trial Act. None of

these events counted for criminal history points under the

guidelines. Accordingly, the PSR used a Criminal History Category

of I, and calculated Contreras-Delgado’s GSR as 24 to 30 months’

imprisonment. Under the guidelines, Contreras-Delgado was

ineligible for probation. See U.S.S.G. § 5B1.1.

1 All references herein are to the amended PSR, filed on June 23,
2017, which contained some factual updates from the first PSR,
filed two weeks prior.

- 4 -
 The PSR then set forth at length Contreras-Delgado’s

personal history and characteristics, including his family

history, and his mother’s impression of his treatment needs: his

“volatile nature” plus “hyperactivity disorder . . . when combined

with his drug use, results in violent behavior. If he is under

treatment, he can control his impulses.” The PSR also included a

detailed summary of Contreras-Delgado’s mental and emotional

health, including a 2012 evaluation by a clinical psychologist and

2017 findings by the Bureau of Prisons Psychology Services.

In its concluding paragraph, the PSR noted that the

district court could “consider the following factors to impose a

sentence outside the advisory [g]uideline[]s”: Contreras-Delgado’s

history of substance abuse, his juvenile record, the fully loaded

weapon and additional magazines he possessed during the instant

offense, his admissions that he had sought out a fully automatic

firearm and that he sold drugs, and finally, that he was arrested

as part of an operation targeting drug point activities in a public

housing project.

Contreras-Delgado did not object to any portion of the

PSR. He did, however, submit a sentencing memorandum urging the

district court to focus on Contreras-Delgado’s rehabilitative

potential and recommending a non-GSR “alternative sentence,”

combining incarceration, probation, and supervised release.

- 5 -
 At sentencing, Contreras-Delgado sought to present

briefly the testimony of Dr. Ramos, the clinical psychologist who

evaluated him while he was in jail. The United States (“the

government”) offered instead to stipulate to the contents of the

report prepared by Dr. Ramos and its recommendation that Contreras-

Delgado receive substance abuse treatment. The district court

approved the stipulations and ruled that there was no need for Dr.

Ramos to testify. The district court summarized Dr. Ramos’s

recommendation –- that Contreras-Delgado “receive substance abuse

treatment to address his problems with addiction and to prevent

relapses” -- and directed that the whole report be added to the

PSR. The district court also instructed that the PSR be modified

to include mental health treatment as one of the conditions.

Contreras-Delgado argued that a prolonged sentence of

imprisonment would not facilitate his rehabilitation. He

particularly “highlight[ed] from the sentencing memo [] the idea

that because of [his] age, a prolonged sentence of imprisonment

may not actually contribute to his rehabilitation.” The district

court pointed out that Dr. Ramos’s report contradicted that

statement: “[Dr.] Ramos says that he is in remission because of

his incarceration.” Contreras-Delgado disagreed and argued that

“it’s about all the environmental factors that go into what would

help someone rehabilitate.” The government agreed that Contreras-

Delgado did “do well under a controlled environment,” but indicated

- 6 -
that a “controlled environment” could be obtained in prison. The

government also explained that other sentencing factors strongly

favored a sentence of imprisonment, particularly the serious

nature of Contreras-Delgado’s offense and his prior offenses

involving threats of violence.

The parties agreed that Contreras-Delgado’s total

offense level was 17. The court then recounted the facts of

Contreras-Delgado’s juvenile offenses involving threats of

violence and noted Contreras-Delgado’s 2014 arrest for a

controlled substance offense. As the PSR explained, this meant

that Contreras-Delgado had no criminal history points. His GSR was

thus 24 to 30 months. Contreras-Delgado asked the court to depart

or vary downward from imposing a sentence of incarceration and

instead impose a combination of incarceration and home

confinement. The government, noting that Contreras-Delgado had a

machine gun in his waist and had prior contacts with the law,

recommended that the court impose a sentence of incarceration

within the GSR. The government indicated that the Bureau of

Prisons could provide a controlled environment as well as mental

health and substance abuse treatment.

Stating that it had considered the facts of Contreras-

Delgado’s offense as well as the other sentencing factors set forth

in 18 U.S.C. § 3553(a), the district court determined that a

sentence above the GSR was appropriate. Specifically, the district

- 7 -
court noted Contreras-Delgado’s age, employment, and substance

abuse history, reiterated the parties’ sentencing recommendations,

and explained that it had considered Contreras-Delgado’s “personal

characteristics, as well as the nature of the offense.” Contreras-

Delgado’s machine gun “was loaded with a 31-round high capacity

magazine,” he had additional high-capacity magazines, he admitted

that he requested a fully automatic gun when he purchased it, and

he confessed to selling drugs. Those facts, plus Contreras-

Delgado’s prior violent threats and the fact that he had not

reformed despite prior leniency, “move[d] the Court to impart a

sentence above the guideline range” to “reflect[] the seriousness

of the offense, promote[] respect for the law, protect[] the public

from further crimes by Mr. Contreras[-Delgado], and address[] the

issues of deterrence and punishment.” Accordingly, the court

sentenced Contreras-Delgado to 46 months’ imprisonment and three

years’ supervised release.

This appeal ensued.

II. DISCUSSION

A. Basic Principles.

As we detail below, Contreras-Delgado contends that the

46-month variant incarceration sentence was both procedurally and

substantively unreasonable. “We review sentencing decisions

imposed under the advisory Guidelines, whether outside or inside

the applicable GSR, for reasonableness.” United States v.

- 8 -
Pantojas-Cruz, 800 F.3d 54, 58 (1st Cir. 2015) (citing United

States v. Turbides-Leonardo, 468 F.3d 34, 40 (1st Cir. 2006)).

This review incorporates two components directed at the appraisal

of procedural soundness and then substantive reasonableness of the

sentence. See Gall v. United States, 552 U.S. 38, 51 (2007);

United States v. Cox, 851 F.3d 113, 119-20 (1st Cir. 2017); United

States v. Gallardo-Ortiz, 666 F.3d 808, 811 (1st Cir. 2012). Thus,

first, we examine whether in arriving at the sentence, the district

court committed any procedural errors. United States v. Rossignol,

780 F.3d 475, 477 (1st Cir. 2015); Gallardo-Ortiz, 66 F.3d at 811.

Such missteps include “failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting a

sentence based on clearly erroneous facts, or failing to adequately

explain the chosen sentence — including an explanation for any

deviation from the Guidelines range.” Gall, 552 U.S. at 51. “We

have described our abuse of discretion standard in this context as

‘multifaceted,’ as we apply clear error review to factual findings,

de novo review to interpretations and applications of the

guidelines, and abuse of discretion review to judgment calls.”

United States v. Nieves-Mercado, 847 F.3d 37, 42 (1st Cir. 2017).

While this court generally applies “the deferential abuse of

discretion standard to preserved challenges to the procedural

reasonableness of a sentence, . . . when a defendant fails to

- 9 -
preserve an objection to the procedural reasonableness below [of

the sentence but asserts it on appeal], the plain error standard

supplants that customary standard of review.” United States v.

Gierbolini-Rivera, 900 F.3d 7, 12 (1st Cir. 2018); see United

States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir. 2015). The

plain error standard “is not easy to meet, because it requires

error, plainness, prejudice to the defendant and the threat of a

miscarriage of justice.” United States v. Torres-Rosario, 658

F.3d 110, 116 (1st Cir. 2011) (citing United States v. Olano, 507

U.S. 725, 732-36 (1993)).

If procedural soundness is established, we then proceed

to the second phase of our review, assessing the substantive

reasonableness of the sentence, “tak[ing] into account the

totality of the circumstances, including the extent of any variance

from the Guidelines range.” United States v. Bermúdez-Meléndez,

827 F.3d 160, 163 (1st Cir. 2016) (alteration in original) (quoting

Gall, 552 U.S. at 51). “In determining substantive reasonableness,

substantial respect is due to the sentencing court’s discretion.”

Id. This deferential approach recognizes that although “[a]

sentencing court is under a mandate to consider a myriad of

relevant factors, . . . the weighting of those factors is largely

within the court’s informed discretion.” United States v.

Clogston, 662 F.3d 588, 593 (1st Cir. 2011). For substantive

reasonableness, the linchpin is “a plausible sentencing rationale

- 10 -
and a defensible result.” United States v. Pol-Flores, 644 F.3d

1, 4-5 (1st Cir. 2011) (quoting United States v. Martin, 520 F.3d

87, 96 (1st Cir. 2008)). Hence, “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. King, 741 F.3d 305, 308 (1st Cir.

2014). While some circuits have found substantive reasonableness

claims preserved despite a lack of objection in the lower court,

and thus not reviewed for plain error, see United States v.

Hernández-Maldonado, 793 F.3d 223, 227 (1st Cir. 2015), in our

circuit the question remains open. See United States v. Rondón-

García, 886 F.3d 14, 26 (1st Cir. 2018); United States v.

Arsenault, 833 F.3d 24, 29 (1st Cir. 2016).

Even if plain error is not applied, considerable

deference must still be given to the district court’s judgment.

Clogston, 662 F.3d at 593. This “highly deferential . . . standard

remains in full force” even if the sentence is outside the

applicable GSR. United States v. Vázquez-Martínez, 812 F.3d 18,

26 (1st Cir. 2016) (quoting United States v. Santiago-Rivera, 744

F.3d 229, 234 (1st Cir. 2014)); see also Gallardo-Ortiz, 666 F.3d

at 811 (“A dramatic variance . . . cannot unduly influence our

review of substantive reasonableness.”). Accordingly, even when

the district court imposes a variant sentence, this court affords

“due deference to the district court’s decision that the § 3553(a)

- 11 -
factors, on a whole, justify the extent of the variance.” Gall,

552 U.S. at 51.

B. Procedural Reasonableness.

Contreras-Delgado argues on appeal that the district court

abused its discretion in denying his request to present the live

testimony of Dr. Ramos, the clinical psychologist who had evaluated

him while he was in jail, and that this denial constitutes

procedural error because he was precluded from presenting

“information relevant to recidivism and rehabilitation . . . as

part of § 3553(a)’s sentencing factors.” He also asserts that

the court “overstated” the evidence of his prior violent threats.

Contreras-Delgado argues generally that the court did not

appropriately balance the § 3553(a) factors, thereby violating the

parsimony principle – the statutory directive that sentences

should be no higher than necessary to achieve the statutory goals

of sentencing. Specifically, Contreras-Delgado complains that the

court did not mention Contreras-Delgado’s mental characteristics,

such as depression and attention deficit hyperactivity disorder.

1.

Contreras-Delgado contends that the district court

abused its discretion when it did not allow the testimony of Dr.

Ramos at the sentencing hearing and further failed to consider

§ 3353(a) sentencing factors. The government counters that

Contreras-Delgado did not object to this denial and, thus, the

- 12 -
appropriate standard of review is for plain error. It is well

established that articulating an objection is required in order to

preserve the most generous standard for a defendant. This not

only protects the interests of the defendant but also provides the

government with an opportunity to respond. Proper objection also

furthers the interests of judicial economy in that it assists

judicial decision-making. To be sure, the record would have been

cleaner if the talismanic “I object” formulation had been uttered.

At the same time, a review of the record leaves little doubt that

counsel sought to present the live testimony of the witness and

persisted in explaining why it was necessary even after it had

been denied. In any event, whether the standard of review be abuse

of discretion or plain error, we conclude that Contreras-Delgado’s

claim of procedural error cannot succeed.

First, we note that while a defendant enjoys a right to

due process at sentencing, United States v. Stile, 845 F.3d 425,

430 (1st Cir. 2017), and the right “to speak or present any

information to mitigate the sentence,” Fed. R. Crim. P.

32(i)(4)(A)(ii); see also Irizarry v. United States, 553 U.S. 708,

715 (2008), “a defendant has no right to insist on calling other

witnesses on his behalf.” Stile, 845 F.3d at 430. See United

States v. Cruzado-Laureano, 527 F.3d 231, 238 (1st Cir. 2008);

United States v. Heller, 797 F.2d 41, 43 (1st Cir. 1986). “The

rule only requires the court to allow the defendant and his

- 13 -
attorney to speak.” Cruzado-Laureano, 527 F.3d at 238 (citing

Fed. R. Crim. P. 32(i)(4)(A)(i), (ii); United States v. Rodriguez,

336 F.3d 67, 70 (1st Cir. 2003)).

Here, the district court not only reviewed Dr. Ramos’s

report from the bench, but it summarized her recommendations and,

as reflected in the district court’s correction of counsel’s

interpretation, demonstrated command of its contents. Moreover,

Dr. Ramos’s entire report was included in the PSR, where, as the

district court noted, it could guide the Bureau of Prisons and

Probation as they determined appropriate treatment. Further,

Contreras-Delgado’s counsel fully explained to the court his view

that Dr. Ramos’s report supported a mitigation of the sentence

below the GSR. In sum, under any standard of review, Contreras-

Delgado’s claim that substitution of Dr. Ramos’s report in lieu of

testimony constituted procedural error is not meritorious.2

2.

Contrary to Contreras-Delgado’s assertion, the district

court properly considered the § 3553(a) sentencing factors,

2 We note that the government also argues that Contreras-Delgado
consented to the substitution of Dr. Ramos’s report in lieu of her
live testimony, and that this consent constituted waiver, instead
of forfeiture, such that he may not revive his waived argument on
appeal. See generally United States v. Delgado-Sánchez, 849 F.3d
1, 6-7 (1st Cir. 2017) (reviewing waiver and forfeiture standards).
The record is open to a different interpretation. In any event,
we need not resolve the issue because, as we have indicated,
Contreras-Delgado’s claim fails. Id. at 7.

- 14 -
including relevant mitigating and aggravating factors; its

weighing of those factors was well within its discretion. While

a sentencing court must consider all the incorporated § 3553(a)

factors, it “need not verbalize its evaluation of each and every

[§] 3553(a) factor.” United States v. Reyes-Rivera, 812 F.3d 79,

89 (1st Cir. 2016). Moreover, it “is not required to address the

§ 3553(a) factors one by one, in some sort of rote incantation

when explicating its sentencing decision, nor must the court afford

each of the § 3553(a) factors equal prominence.” United States v.

Sosa-González, 900 F.3d 1, 5 (1st Cir. 2018) (quoting United States

v. Vázquez-Vázquez, 852 F.3d 62, 66 (1st Cir. 2017)). Here, the

court expressly stated that it had considered the § 3553(a)

sentencing factors. That statement is “entitled to significant

weight.” United States v. Caballero-Vázquez, 896 F.3d 115, 120

(1st Cir. 2018) (quoting Santiago-Rivera, 744 F.3d at 233). It

also implicitly acknowledges awareness of and accordance with the

parsimony principle. Turbides-Leonardo, 468 F.3d at 41 (“[T]he

sentencing court in this case acknowledged its awareness of the

parsimony principle during the disposition hearing, stating that

it had taken [§] 3553(a) into account in arriving at the 48-month

sentence. On these facts, no more is exigible.”).

Moreover, the district court discussed the relevant

sentencing factors on the record. First, the district court

expressly considered Contreras-Delgado’s history and

- 15 -
characteristics, including his age, employment, and substance

abuse history. Then, the court specified the facts it found

warranted a sentence above the applicable GSR: Contreras-Delgado’s

automatic weapon was loaded with a 31-round high-capacity magazine

and 31 rounds of ammunition; Contreras-Delgado had a second 31-

round high-capacity magazine, also fully loaded with 9-mm

ammunition for the automatic weapon; Contreras-Delgado had a third

high-capacity magazine, this one with 15 rounds of 9-mm ammunition;

Contreras-Delgado not only knew the weapon was fully automatic,

but specifically requested that modification when he purchased it;

Contreras-Delgado had previously benefited from leniency and the

“probation and programs offered by the Commonwealth of Puerto Rico

and the Court of Juvenile Affairs”; Contreras-Delgado admitted

selling drugs and had in fact been arrested -- though not convicted

-- for possession with intent to distribute marijuana and cocaine;

and Contreras-Delgado’s criminal history included “threatening to

kill children with a knife and threatening to kill his mother.”

Contreras-Delgado’s suggestion that the district court somehow

erred by characterizing these violent threats as violent behavior

is unavailing. See, e.g., United States v. Harden, 866 F.3d 768,

774 (7th Cir. 2017) (noting that a statutory “definition of violent

offense comports with a common-sense understanding of violent

conduct as the use or threat of physical force against another and

- 16 -
is relevant as a guidepost as to a common definition of

‘violence.’” (emphasis added)).

These are all statutorily authorized sentencing

considerations; each of these facts relates to the nature and

circumstances of the offense (especially those not already

accounted for by the guidelines) or to Contreras-Delgado’s history

and characteristics. See 18 U.S.C. § 3553(a)(1). Basing

Contreras-Delgado’s sentences on these factors cannot constitute

procedural error, nor will this court “disturb a well-reasoned

decision” -- including the one here -- “to give greater weight to

particular sentencing factors over others.” United States v.

Santini-Santiago, 846 F.3d 487, 492 (1st Cir. 2017) (quoting United

States v. Gibbons, 553 F.3d 40, 47 (1st Cir. 2009)).

The district court expressly found that a sentence above

the GSR was further supported by the statutory sentencing

considerations of: “reflect[ing] the seriousness of the offense,

promot[ing] respect for the law, protect[ing] the public from

further crimes by Mr. Contreras[-Delgado], and address[ing] the

issues of deterrence and punishment.” That finding must be

afforded a high level of deference on appeal, regardless of the

standard of review applied. See Vázquez-Martínez, 812 F.3d at 26.

Contreras-Delgado’s claim “that the court erred by

relying on [negative factors] excessively” thus simply “amounts to

a disagreement with the district court’s weighing of the different

- 17 -
sentencing factors.” United States v. Cruz-Vázquez, 841 F.3d 546,

550 (1st Cir. 2016). That the district court -- after careful

consideration of the statutory factors and explanation of its

reasoning -- weighed the factors differently than Contreras-

Delgado is not error. United States v. Carrasco-de-Jesus, 589

F.3d 22, 29 (1st Cir. 2009).

All the potentially mitigating factors Contreras-Delgado

identifies on appeal were discussed in the PSR, in Contreras-

Delgado’s sentencing memorandum, and/or at sentencing. “The

potentially mitigating factors [the defendant] identifies on

appeal were thoroughly discussed in the presentence report; that

the district court did not explicitly mention them during the

sentencing hearing suggests they were unconvincing, not ignored.”

United States v. Lozada-Aponte, 689 F.3d 791, 793 (1st Cir. 2012).

Moreover, although the district court did not recite

Contreras-Delgado’s mental health history, it did review Dr.

Ramos’s report and direct that it be added to the PSR, which

signals consideration of its contents. “The record . . . supports

the conclusion that the District Court simply focused on other

considerations that it implicitly deemed more important, including

the defendant’s history of violent behavior.” United States v.

Occhiuto, 784 F.3d 862, 869 (1st Cir. 2015). The fact that

Contreras-Delgado would have preferred that greater weight be

given to his psychological issues rather than to the seriousness

- 18 -
of his criminal behavior is not a reason to vacate his sentence.

See, e.g., United States v. Arroyo-Maldonado, 791 F.3d 193, 201

(1st Cir. 2015) (finding no error where the defendant sought to

substitute his judgment for that of the sentencing court).

Regarding Contreras-Delgado’s prior behavior, the

district court did include a factually accurate comment that

Contreras-Delgado had been arrested, but not convicted, of

possessing drugs with intent to distribute them at the state level.

Contreras-Delgado separately admitted that he “sells drugs . . .

to make a living,” so it is undisputed that he committed drug

trafficking offenses not reflected in his criminal history score.

Thus, the district court did not run afoul of this court’s

admonition not to use mere arrests to “infer unlawful behavior

unless there is proof by a preponderance of the evidence of the

conduct” those charges allege. Rondón-García, 886 F.3d at 25)

(citing United States v. Cortés-Medina, 819 F.3d 566, 570 (1st

Cir. 2016)). The district court’s use of the phrase “[a]s usual”

to describe the dismissal of those drug-distribution charges did

not render Contreras-Delgado’s underrepresented criminal history

an impermissible consideration. See 18 U.S.C. § 3553.

Accordingly, Contreras-Delgado’s claim fails under any

standard of review. Even under the more defendant-friendly abuse

of discretion standard, Contreras-Delgado’s arguments fail because

his sentence was properly based on permissible § 3553(a) sentencing

- 19 -
factors, and the allegedly mitigating factors were considered by

the district court. See Arroyo-Maldonado, 791 F.3d at 201.3

C. Substantive Reasonableness.

An inquiry into the substantive reasonableness of a

sentence must “take into account the totality of the circumstances,

including the extent of any variance from the Guidelines range.”

Gall, 552 U.S. at 51. “The hallmarks of a substantively reasonable

sentence are ‘a plausible sentencing rationale and a defensible

result.’” United States v. Zapata-Vázquez, 778 F.3d 21, 24 (1st

Cir. 2015) (quoting Martin, 520 F.3d at 96). Under the totality

of the circumstances here, Contreras-Delgado’s 46-month sentence

was substantively reasonable.

As has been noted, it is clear from the record that the

district court sufficiently considered the relevant § 3553

sentencing factors. See supra pp. 15-20. The court assessed the

dangerous nature and circumstances of the offense of conviction,

including the fact that the machine gun possession offense also

involved a substantial amount of ammunition and multiple high-

capacity magazines, heightening the risk posed to the public.

3 Because Contreras-Delgado’s improper-weight arguments fail
regardless of the standard of review, it is immaterial whether
they are characterized as procedural or substantive arguments.
Cf. Caballero-Vázquez, 896 F.3d at 120 n.1 (noting that First
Circuit “precedent is less-than-clear as to whether a sentencing
court’s weighing of mitigating factors implicates procedural or
substantive reasonableness”).

- 20 -
Moreover, Contreras-Delgado admitted committing other crimes

(specifically, selling drugs) for which he had never been punished,

despite having been previously arrested. That, as well as the

fact that Contreras-Delgado’s prior juvenile convictions for

threats of violence resulted in no criminal history points, support

the conclusion that the district court was well within its

discretion to believe that the GSR underrepresented Contreras-

Delgado’s criminal history. “[A] district court may vary a

sentence upward in an effort to reflect past leniency.” United

States v. Santiago-González, 825 F.3d 41, 49 (1st Cir. 2016)

(citing United States v. Flores-Machicote, 706 F.3d 16, 21 (1st

Cir. 2013)). Indeed, the district court noted that despite his

prior brushes with the law, Contreras-Delgado had “benefited from

probation and programs” instead of imprisonment. The court thus

acted within the bounds of its discretion when it determined that

Contreras-Delgado’s offense —- when viewed in light of his history

—- warranted a variant sentence. See United States v. Romero-

Galindez, 782 F.3d 63, 71-72 (1st Cir. 2015). “[D]eviation[s]

from the Guidelines ‘should typically be rooted either in the

nature and circumstances of the offense or the characteristics of

the offender.’” Id. (quoting Martin, 520 F.3d at 91)). Here,

the district court rooted its variant sentence in both.

We further note that the length of the sentence does not

make it per se unreasonable. “The district court evaluated the

- 21 -
factors provided under 18 U.S.C. § 3553(a) and determined that an

above-guidelines sentence was appropriate.” Santini-Santiago, 846

F.3d at 492 (upholding a district court’s 18-month variance above

an applicable GSR of 12 to 18 months, partly due to the weight the

district court placed on the seriousness of the offense).

Contreras-Delgado’s sentence falls well within the “expansive

universe of substantively reasonable sentences.” United States v.

Matos-de-Jesús, 856 F.3d 174, 180 (1st Cir. 2017) (upholding a

sentence 15 months longer than the top end of the GSR). “Decisions

like these are within the sound discretion of sentencing courts,

and [this court] ‘will not disturb a well-reasoned decision to

give greater weight to particular sentencing factors over

others.’” Santini-Santiago, 846 F.3d at 492 (quoting Gibbons, 553

F.3d at 47).

In this case, Contreras-Delgado faced a statutory

maximum sentence of up to ten years of imprisonment. See 18 U.S.C.

§ 922(o). His actual sentence of less than four years is not only

defensibly within “the expansive boundaries of [the] universe” of

reasonable sentences, but also well within the statutory bounds of

the district court’s discretion, and represents a fraction of

Contreras-Delgado’s exposure. Martin, 520 F.3d at 92; see also

United States v. Díaz-Bermúdez, 778 F.3d 309, 313-14 (1st Cir.

2015) (comparing sentence to statutory maximum, and collecting

cases upholding variances several years above the guidelines).

- 22 -
“[A]n increased sentence is necessarily a judgment call and, within

wide limits, deference is due to the trier’s on-the-spot

perceptions.” Arroyo-Maldonado, 791 F.3d at 198 (quoting United

States v. Vargas-Dávila, 649 F.3d 129, 131 (1st Cir. 2011)). We

thus defer to the district court’s reasoned decision that, under

the circumstances, Contreras-Delgado’s behavior warranted a 46-

month sentence.

III. CONCLUSION

In sum, a sentence should be left intact so long as it

is procedurally sound and there is “a plausible sentencing

rationale and a defensible result.” Martin, 520 F.3d at 96; Gall,

552 U.S. at 49-50 (requiring individualized consideration and

adequate explanation for variances). The district court provided

individualized assessments of Contreras-Delgado’s conduct as well

as the other § 3553 factors, and reasonably explained the basis

for the sentence imposed.

We conclude that Contreras-Delgado’s sentence was

procedurally and substantively reasonable.

The sentence is affirmed.

- 23 -