United States Court of Appeals
For the First Circuit
Nos. 19-1562
19-1565
UNITED STATES OF AMERICA,
Appellee,
v.
RAFAEL ANTONIO SANTA-SOLER,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Thompson, Selya, and Barron,
Circuit Judges.
Eric Alexander Vos, Federal Public Defender, and Franco L.
Pérez-Redondo, Assistant Federal Public Defender, Supervisor,
Appeals Division, on brief for appellant.
W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-
Almonte, Assistant United States Attorney, Chief, Appellate
Division, and Antonio L. Perez-Alonso, Assistant United States
Attorney, on brief for appellee.
January 14, 2021
SELYA, Circuit Judge. These consolidated appeals are
brought by defendant-appellant Rafael Antonio Santa-Soler. The
first appeal relates to the defendant's sentence following his
conviction on a charge of being a felon in possession of a firearm.
The second appeal relates to the defendant's sentence following
the revocation of a supervised release term imposed in connection
with a prior, unrelated conviction.1 Concluding, as we do, that
the defendant's claims of error are unavailing, we affirm the
challenged sentences.
I. BACKGROUND
Where, as here, a defendant appeals sentences imposed
following guilty pleas, we draw the facts from the plea colloquy,
the unchallenged portions of the presentence investigation report
(PSI Report), and the sentencing transcript. See United States v.
Miranda-Díaz, 942 F.3d 33, 37 (1st Cir. 2019); United States v.
Dávila-González, 595 F.3d 42, 45 (1st Cir. 2010). On September 9,
2018, police officers in Puerto Rico received a call from a witness
who had seen the driver of a black Mercedes pointing a firearm at
an unknown individual. Upon locating the vehicle, officers
observed the defendant disembarking from it. They detained the
defendant, administered a breathalyzer test, discovered that his
blood-alcohol level was 0.163, and arrested him for driving under
1With the consent of the parties, both of the challenged
sentences were imposed during the same disposition hearing.
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the influence of alcohol. Incident to the arrest, the police also
impounded the vehicle. Upon searching it the next day, they
recovered a stolen nine-millimeter caliber pistol with a round in
the chamber.
At the time of his arrest, the defendant was a federally
convicted felon, having been found guilty of two carjackings in
2008 and sentenced to prison. Cognizant of this history, a federal
grand jury sitting in the District of Puerto Rico returned an
indictment charging the defendant with unlawful possession of a
firearm and ammunition by a convicted felon. See 18 U.S.C.
§ 922(g)(1). The charged conduct was committed while the defendant
was serving a term of supervised release traceable to his
carjacking convictions and the subsequent revocation of supervised
release terms imposed in connection with his sentence for those
convictions.2 The defendant pleaded guilty to the felon-in-
possession charge and stipulated that he had violated the
conditions of the ongoing supervised release term.
The probation department prepared the PSI Report, which
calculated the defendant's guideline sentencing range (GSR) at 46
to 57 months based on a total offense level of 19 and a criminal
2While serving the supervised release term attached to his
carjacking sentence, the defendant was twice arrested for other
crimes: drug-trafficking and domestic violence, respectively.
Each of these crimes resulted in the revocation of an ongoing term
of supervised release and — eventually — in the imposition of a
new term of supervised release.
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history category of IV. The defendant did not challenge these
calculations. He did, however, file a sentencing memorandum
requesting a sentence at the bottom of the GSR with respect to the
felon-in-possession charge. He also requested that any sentence
resulting from the revocation of supervised release run
concurrently with the sentence imposed on the felon-in-possession
charge.
On May 15, 2019, the district court convened a joint
disposition hearing for both the felon-in-possession charge and
the supervised release revocation. See supra note 1. With respect
to the former, the court reviewed the defendant's criminal history.
In the course of this review, it mentioned certain of the
defendant's prior arrests but made clear that those arrests had
not ripened into convictions. After indicating that it had
reviewed the sentencing factors limned in 18 U.S.C. § 3553(a), the
court imposed an upwardly variant prison sentence: 66 months.
The court decreed that this term of immurement should be served
consecutive to any term of immurement imposed as a result of the
revocation of the defendant's supervised release.
With respect to the supervised release violation, the
court noted that the offense triggering the revocation of
supervised release was a Class C felony and, thus, allowed the
imposition of an incarcerative sentence up to a maximum of 24
months. See 18 U.S.C. § 3583. Explaining, inter alia, that the
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defendant's supervised release had been revoked twice before, the
court proceeded to pronounce a 24-month sentence.
The defendant separately appealed each of these
sentences. Those appeals are presently before us.
II. ANALYSIS
The defendant advances discrete claims of error with
respect to each of the imposed sentences. We treat these claims
separately, starting with the felon-in-possession sentence.
A.
The defendant assigns error to the felon-in-possession
sentence on two grounds. First, he argues that the district court
improvidently relied on his arrest record (which includes arrests
that did not result in convictions). Second, he argues that the
court failed to provide an adequate explanation for the sentence
imposed.
As a general matter, we review sentencing challenges for
abuse of discretion. See Gall v. United States, 552 U.S. 38, 56
(2007); United States v. Clogston, 662 F.3d 588, 590 (1st Cir.
2011). That standard of review applies to the defendant's arrest-
record claim, which was raised below.
Even so, the defendant's claim that the district court
impermissibly relied on his prior arrests does not hold water. To
support this claim, the defendant points to a series of cases
holding that a sentencing court cannot rely on an unembellished
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arrest (that is, an arrest not leading to a conviction) as an
adverse sentencing factor. See, e.g., United States v. Marrero-
Pérez, 914 F.3d 20, 22-23 (1st Cir. 2019); United States v.
Gallardo-Ortiz, 666 F.3d 808, 815 (1st Cir. 2012); United States
v. Zapete-García, 447 F.3d 57, 60-61 (1st Cir. 2006). Although
those cases are good law, they are inapposite here.
The short of it is that the defendant's argument sweeps
too broadly. Although a sentencing court may be prohibited from
relying on a defendant's arrest record simpliciter as an adverse
sentencing factor and from drawing inferences of guilt from such
an unembellished arrest record, see Marrero-Pérez, 914 F.3d at 22,
sentencing courts are not prohibited from simply recounting a
defendant's arrest history. It follows that a sentencing court's
mere mention of a defendant's arrest record as a matter of
historical fact, without more, does not constitute an abuse of
discretion. See United States v. Díaz-Lugo, 963 F.3d 145, 153
(1st Cir. 2020) ("[A] sentencing court does not abuse its
discretion merely by reciting a defendant's arrest record.").
In this case, there was no "more." The record shows
with conspicuous clarity that the sentencing court did not "rel[y]
on an arrest report" in fashioning the challenged sentence.
Miranda-Diaz, 942 F.3d at 39-40 (quoting Marrero-Pérez, 914 F.3d
at 24). The converse is true: the court stated in no uncertain
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terms that the defendant's prior arrests, not leading to
convictions, were "not considered for the sentence."
Despite this disclaimer, the defendant clings to
Marrero-Pérez, 914 F.3d at 22, to support the proposition that
district courts may not reference defendants' arrest histories at
sentencing. But the defendant's reliance on Marrero-Pérez is
misplaced. There, the sentencing court expressly based the need
for a higher sentence on the defendant's arrest history. See id.
Here, by contrast, the district court drew no such inference, going
so far as to state explicitly that the defendant's arrest history
had no impact on his sentence. There was no abuse of discretion.
The defendant's next claim of error posits that the
sentencing court did not provide a sufficient explanation for
imposing an upward variance. Because this challenge is raised for
the first time on appeal, our review is for plain error. See
United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). As we
have repeatedly said, "[t]he plain error hurdle is high." United
States v. Hunnewell, 891 F.2d 955, 956 (1st Cir. 1989). To
demonstrate plain error, an appellant must show "(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." Duarte, 246 F.3d at 60. The proponent
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of plain error must make all four showings in order to prevail.
See United States v. Pinkham, 896 F.3d 133, 136-37 (1st Cir. 2018).
In this instance, we discern no error, plain or
otherwise. The court below furnished adequate reasons for the
sentence imposed: it cited, among other things, the defendant's
checkered criminal history (that is, his record of convictions),
his prior interactions with illicit drugs, his repeated disregard
for supervised release conditions (leading to a total of ten
supervised release violations and three revocations), his lack of
any meaningful record of employment, and the egregious nature of
his offense conduct.3 The court's explanation was adequate,
bearing in mind that "[e]ven when we are reviewing a significant
upward variance, we must afford 'due deference to the district
court's decision that the § 3553(a) factors, on a whole, justify
the extent of the variance.'" Miranda-Diaz, 942 F.3d at 42
(quoting United States v. Vargas-García, 794 F.3d 162, 167 (1st
Cir. 2015)).
That ends this aspect of the matter. We hold, without
serious question, that the sentence imposed on the felon-in-
possession conviction survives the defendant's challenge.
3 The offense of conviction involved possession of a stolen
firearm, loaded and ready to fire. Moreover, there was evidence
that the defendant had pointed the gun at an individual while he
(the defendant) was heavily inebriated.
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B.
This brings us to the defendant's appeal of the sentence
imposed in connection with the revocation of his supervised release
term. The defendant contends that the sentence is substantively
unreasonable, attributing this alleged shortcoming in large part
to the court's failure to consider and/or give appropriate weight
to mitigating factors as required by 18 U.S.C. § 3553(a).4 This
claim of error engenders abuse-of-discretion review. See Holguin-
Hernandez v. United States, 140 S. Ct. 762, 766 (2020).
We assess challenges to the substantive reasonableness
of a sentence by asking whether the challenged sentence "is
supported by a plausible sentencing rationale and reaches a
defensible result." United States v. Cameron, 835 F.3d 46, 52
(1st Cir. 2016) (quoting United States v. Breton, 740 F.3d 1, 19
(1st Cir. 2014)). Here, the defendant's primary argument is that
this standard is not satisfied because the sentencing court failed
properly to weigh certain section 3553(a) factors (specifically,
the defendant's mental health history and personal
characteristics).
To begin, the defendant submits that the district court
totally disregarded the mitigating factors. He stresses that the
4
As a technical matter, the defendant predicates this failure
on noncompliance with 18 U.S.C. § 3583(e). That statute, though,
simply directs a sentencing court to 18 U.S.C. § 3553.
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court made no explicit mention of the mitigating factors with
respect to the revocation sentence but, rather, only mentioned
those factors with respect to the felon-in-possession sentence.
This discussion, the defendant notes, did not take place until
after the court handed down the revocation sentence.
The defendant's argument artificially compartmentalizes
what transpired at the disposition hearing. A sentencing court's
comments must be read as a whole. See Dávila-González, 595 F.3d
at 48-49. Here, the sentencing transcript, read as a whole, makes
manifest that the court discussed a multitude of factors specific
to the defendant's overall situation. Although the court did not
walk through the section 3553(a) factors one by one before imposing
a sentence for the supervised release revocation, it did
demonstrate its awareness of those factors during the hearing.
This discussion obviously informed both of the sentences imposed
and sufficed to show the court's familiarity with the section
3553(a) factors insofar as those factors related to both of the
sentencing determinations. See id. at 49 (finding that district
court properly weighed section 3553(a) factors even though no one
factor was specifically mentioned at sentencing).
In addition, we find that the district court clearly
articulated its sentencing rationale. The court explicitly noted
that the defendant had twice before had his supervised release
revoked. It went on to explain that a maximal sentence was
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justified because "[the defendant] has shown that he is unable to
comply with the law or the conditions of supervision imposed by
this Court." The court further explained that it had considered
the policy statements of the sentencing guidelines as required by
statute. See 18 U.S.C. §§ 3553(a), 3583(e).
The court's rationale was plausible: the defendant
repeatedly demonstrated an inability to comply with the terms of
supervised release. What is more, the crimes that the defendant
committed while on supervised release — such as domestic violence,
drug-trafficking, and possessing a stolen firearm following
previous felony convictions — pose significant risks to the public.
Against this backdrop, it was reasonable for the court to conclude
— as it did — that the need for condign punishment, adequate
deterrence, and respect for the rule of law warranted a maximum
sentence. See Díaz-Lugo, 963 F.3d at 157; Vargas-Garcia, 794 F.3d
at 167.
The defendant's attack on the plausibility of this
rationale misses the mark. "Merely raising potentially mitigating
factors does not guarantee" a particular result. Dávila-González,
595 F.3d at 49. So, too, it is incorrect to assume — as the
defendant does — that his failure to persuade the court to impose
a more lenient sentence implies that the mitigating factors he
cites were overlooked. See United States v. Martins, 413 F.3d
139, 154 (1st Cir. 2005). On this record, the more appropriate
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inference is that, in the court's view, the mitigating factors
that the defendant highlighted were unpersuasive. See id.; see
also United States v. Butler-Acevedo, 656 F.3d 97, 100-01 (1st
Cir. 2011) (concluding that district court had considered
mitigating factors not referenced in court's stated sentencing
rationale). Here, moreover, the court acknowledged that it had
reviewed the defendant's sentencing memorandum — a memorandum that
discussed the defendant's mental health history and the other
supposedly mitigating factors.
Last — but far from least — the sentence itself is
defensible. After all, "[t]here is no one reasonable sentence in
any given case but, rather, a universe of reasonable sentencing
outcomes." Clogston, 662 F.3d at 592. In the case at hand, the
court imposed the maximum available sentence — twenty-four months
— after considering, inter alia, previous violations of supervised
release and the severity of the offense that triggered the latest
revocation. Taking into account the totality of the circumstances,
we are satisfied that the sentence falls within the broad universe
of reasonable outcomes. See id. at 593 (holding that weighing
pertinent factors to determine sentence "is largely within the
court's informed discretion"). That is game, set, and match. We
conclude both that a twenty-four month sentence on the revocation
charge is substantively reasonable and that the court below acted
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within the encincture of its discretion in imposing such a
sentence.5
III. CONCLUSION
We need go no further. For the reasons elucidated above,
the challenged sentences are
Affirmed.
5 The defendant does not argue that his combined sentences
are substantively unreasonable because the district court ordered
them to run consecutively rather than concurrently. Given the
wide latitude enjoyed by the district courts in determining whether
sentences should run consecutively or concurrently, see 18 U.S.C.
§ 3584; see also United States v. Ocasio-Cancel, 727 F.3d 85, 89
(1st Cir. 2013) ("[T]he decision about whether to impose a
concurrent or consecutive sentence normally lies within the
district court's discretion."), any such argument would have faced
a steep uphill climb.
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