United States Court of Appeals
For the First Circuit
No. 20-1072
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS A. RODRÍGUEZ-CRUZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]
Before
Kayatta, Selya, and Barron,
Circuit Judges.
José B. Vélez Goveo and Vélez & Vélez Law Office on brief for
appellant.
W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-
Almonte, Assistant United States Attorney, Chief, Appellate
Division, and Julia M. Meconiates, Assistant United States
Attorney, on brief for appellee.
May 12, 2021
SELYA, Circuit Judge. This sentencing appeal is built
on a porous foundation. In his main line of attack, defendant-
appellant Carlos A. Rodríguez-Cruz assails the district court for
imposing a sentence based on an incorrect statement of a salient
fact concerning the defendant's criminal history. The defendant,
though, glides over the district court's later correction of its
misstatement — a correction that the court made before imposing
the sentence. Concluding that the sentence was not in any way
premised on a misapprehension of fact but, rather, reflected a
plausible sentencing rationale and achieved a defensible result,
we summarily affirm.
We briefly rehearse the facts and travel of the case.
When — as in this case — a criminal defendant appeals the sentence
imposed following 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).
In June of 2012, the defendant was involved in an
altercation at a pub in Salinas, Puerto Rico, during which he drew
a pistol and pointed it at a police officer. After a brief chase,
the defendant was apprehended. He was subsequently convicted in
the federal district court of possessing cocaine with the intent
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to distribute it. See 21 U.S.C. § 841(a)(1). The court sentenced
him to serve an incarcerative term of forty-eight months.
The defendant served his prison sentence and, in
February of 2016, began serving a term of supervised release. Just
over six months later, United States Marshals and federal probation
officers — having received information that the defendant was up
to his old tricks and again dealing drugs — conducted a search-
and-seizure operation at the defendant's residence in Guayama.
For aught that appears, the search turned up no drugs, but a
handgun was found in a trash can in the defendant's bedroom. The
gun was loaded with fourteen rounds of ammunition (including one
in the chamber). As a result, the defendant was arrested.
A federal grand jury sitting in the District of Puerto
Rico charged the defendant with a single count of possessing a
firearm as a convicted felon. See 18 U.S.C. §§ 922(g)(1),
924(a)(2). After initially maintaining his innocence, the
defendant reversed his field and entered a straight guilty plea on
August 26, 2019. The probation department prepared a PSI Report,
which recommended a guideline sentencing range (GSR) of thirty to
thirty-seven months. Neither the government nor the defendant
disputed this range.
At the disposition hearing, the district court adopted
the recommended GSR. In preliminary remarks, the court noted that
the defendant previously had been sentenced for "a firearms
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incident involving a police officer"; that he had eventually been
placed on supervised release as a result of that conviction; and
that, while on supervised release, a search of his home led to his
present predicament. The court proceeded to review the sentencing
factors limned in 18 U.S.C. § 3553(a) and emphasized that, given
the facts and circumstances of the case at hand, a need to deter
and promote respect for the law was at the forefront of the court's
thinking. Along with these factors, the court said that it would
give special weight to the facts of the offense, the defendant's
characteristics, and the possibility of rehabilitation.
At the end of its initial assessment, the court concluded
that this was "one of the[] cases" in which the defendant "was
showing no respect for the law." Buttressing this conclusion, the
court stated that it could not "ignore" the fact that, while in
custody, the defendant had "over 30 disciplinary sanctions ranging
from A to Z of all sorts."1 The court said that it had "never seen
such a wide array" of disciplinary infractions. That record, in
the court's view, demonstrated that the defendant was "a person
who doesn't show respect for the law."
1 The defendant's thirty-three disciplinary infractions —
fifteen of which were in connection with his confinement for the
prior offense and eighteen of which were in connection with his
pretrial confinement for the offense of conviction — ranged from
possessing dangerous weapons to setting a fire.
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The court then asked to hear from the parties. The
government advocated for an upwardly variant sentence of fifty-
one months' imprisonment. In support, it stressed that the
defendant committed the offense of conviction while on supervised
release and that he was found with a gun within one year of being
discharged from prison. It also described the defendant's splotchy
disciplinary history while in custody, prompting the court to
remark that it appeared as if the defendant had "exhausted the
[federal Bureau of Prisons'] administrative offense list."
Defense counsel sought to change the subject, emphasizing that the
defendant already had been confined for twenty-one months in
pretrial detention. Since the low end of the GSR was thirty months
and good-time credits would shrink that number even further,
counsel suggested that the court impose a sentence of time served.
Counsel added that the defendant's record of disciplinary
infractions was largely attributable to "significant issues
concerning substance abuse and mental health" and suggested that
keeping the defendant in federal custody would not provide the
treatment needed for those issues.
The district court told the parties that it did not "have
an automatic formula for sentencing weapons offenses." The court
then observed that "this [was] not a first time weapon offense, it
[was] the second weapons offense back to back." Defense counsel
immediately interjected, stating that the defendant's prior
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offense was not a weapons offense but, rather, a drug-trafficking
offense. The court responded that the arrest leading to the drug-
trafficking charge "arose out of a firearms incident." Reading
from a section of the PSI Report to which the defendant had not
objected, the court clarified that the previous conviction was a
drug-related offense but resulted from a dispute in which the
defendant pointed a gun at a police officer.
Striving to ensure that everyone was on the same page,
the court spelled out its understanding that the defendant "did
not plead to a firearms offense before a federal court but he does
have that drug offense, and there's no dispute that a firearm was
involved." The court then returned to the fact that the defendant
was in the midst of a term of supervised release when he committed
the offense of conviction and commented that "a sentenced
supervisee does not get to choose when to turn the supervised
release on and off." It summed up that "the facts do not paint
pretty in this case."
When all was said and done, the district court determined
that the case warranted an upward variance and that a forty-eight-
month sentence was sufficient but not greater than necessary.
Although it was "contemplating a higher variance," the court was
dissuaded from that course by the persuasive force of defense
counsel's mitigating arguments. When the court imposed the forty-
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eight-month sentence, the defendant objected to it as
substantively unreasonable. This timely appeal followed.
"Appellate review of a criminal defendant's claims of
sentencing error involves a two-step pavane." United States v.
Miranda-Díaz, 942 F.3d 33, 39 (1st Cir. 2019). We first review
any claims of procedural error and, if we find the challenged
sentence to be procedurally sound, we then review any challenge to
its substantive reasonableness. See id. In this instance, the
defendant frames his claim of sentencing error solely as a
challenge to the substantive reasonableness of the imposed
sentence.
The defendant's principal claim of error posits that the
upwardly variant sentence was substantively unreasonable because
the sentencing court predicated the variance on a "specific set of
erroneous facts." Putting flesh on these bones, the defendant
contends that his variant sentence was "entirely tied to the
court's mistaken determination" that he had been convicted of a
prior firearms offense. And to make a bad situation worse, the
defendant says, the court did not address his need for substance
abuse and mental health treatment.
Challenges to the substantive reasonableness of criminal
sentences engender abuse-of-discretion review. See Holguin-
Hernandez v. United States, 140 S. Ct. 762, 766 (2020); United
States v. Bruno-Campos, 978 F.3d 801, 808 (1st Cir. 2020). We
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approach such challenges mindful that "[t]here is no one reasonable
sentence in any given case but, rather, a universe of reasonable
sentencing outcomes." United States v. Clogston, 662 F.3d 588,
592 (1st Cir. 2011). Our task, then, is "to determine whether the
[challenged] sentence falls within this broad universe." United
States v. Rivera-Morales, 961 F.3d 1, 21 (1st Cir. 2020).
Our case law makes pellucid that the hallmarks of a
substantively reasonable sentence are a plausible sentencing
rationale and a defensible result. See, e.g., Bruno-Campos, 978
F.3d at 809; United States v. Cameron, 835 F.3d 46, 52 (1st Cir.
2016); Clogston, 662 F.3d at 593. Where, as here, a variant
sentence is imposed, the district court must provide an adequate
explanation for the variance. See Bruno-Campos, 978 F.3d at 809.
That prerequisite, though, "does not require the court to be
precise to the point of pedantry." United States v. Del Valle-
Rodríguez, 761 F.3d 171, 177 (1st Cir. 2014). It is against this
backdrop that we turn to the defendant's asseverational array.
As we have said, the defendant's most loudly bruited
claim is that the district court relied on erroneous information
in fashioning the sentence. To support this claim, the defendant
points to the court's admittedly incorrect statement that the
offense of conviction was the defendant's second conviction for a
weapons offense. The defendant, however, cherry-picks the
sentencing transcript and conveniently overlooks what transpired
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after the court made the incorrect statement: the court corrected
its error and left no doubt that it understood the circumstances
of the earlier offense.
We have explained before — and today reaffirm — that a
district court "must take pains to base sentencing judgments upon
reliable and accurate information." United States v. Tavano, 12
F.3d 301, 305 (1st Cir. 1993). In measuring adherence to this
standard, though, "[a] sentencing court's comments must be read as
a whole." United States v. Santa-Soler, 985 F.3d 93, 98 (1st Cir.
2021). A party cannot lift a single comment from the sentencing
dialogue and focus on it in splendid isolation. Here, the
sentencing transcript, read in its entirety, defenestrates the
defendant's claim of error.
The district court's brief mischaracterization of the
defendant's prior offense was promptly corrected. In this respect,
the record is luminously clear. When defense counsel called the
misstatement to the court's attention, the court conceded, "You
are correct . . . the [prior] conviction is for controlled
substances." The court went on to explain that a firearm was
nevertheless seen in the defendant's possession (indeed, it was
the pistol that brought the defendant to the officer's attention).
The short of it, then, is that, prior to pronouncing
sentence, the court both acknowledged and corrected its earlier
misstatement. When the sentencing transcript is read as a whole,
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there is nothing to impugn either the reliability or the accuracy
of the information upon which the court actually relied in imposing
the challenged sentence.
Here, moreover, the court lucidly articulated its
sentencing rationale, emphasizing that the defendant disregarded
the terms of his supervised release. The court reasonably
concluded that the facts of the case demonstrated that the
defendant was "a person who doesn't show respect for the law."
Given this supportable conclusion, it is difficult to fault the
court's determination that an upwardly variant sentence would both
serve to deter future misconduct and promote respect for the law.
See, e.g., Santa-Soler, 985 F.3d at 98-99; United States v. Díaz-
Lugo, 963 F.3d 145, 157-58 (1st Cir. 2020). On this record, the
district court's sentencing rationale was plausible.
This brings us to the question of whether the forty-
eight-month sentence represents a defensible result. The mere
fact that the sentence constitutes an eleven-month ratchet over
the top of the GSR, by itself, does not render the sentence
substantively unreasonable. See United States v. Flores-
Machicote, 706 F.3d 16, 25 (1st Cir. 2013). Rather, the inquiry
is fact-sensitive and case-specific. See United States v. Martin,
520 F.3d 87, 91 (1st Cir. 2008).
The facts of this case lend considerable support to the
extent of the upward variance. The defendant, a convicted felon,
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possessed a firearm while still on supervised release. What is
more, the offense of conviction occurred within a year of the
defendant's release from prison. Even without the long list of
disciplinary infractions that took place while the defendant was
in custody both before and after his commission of the offense of
conviction — which the district court said it was "not using [] to
enhance [the defendant's] punishment" — this case is easily
distinguished from the mine-run of offenses carrying the same GSR.
See Bruno-Campos, 978 F.3d at 806-07; Del Valle-Rodríguez, 761
F.3d at 176-77. Taking these circumstances into account, we
conclude that the resultant sentence, though upwardly variant, was
well within the realm of permissible results.
Nor is this conclusion undermined by the defendant's
unsupported assertion that the district court did not address
certain mitigating factors (such as his need for substance abuse
and mental health treatment). Although a sentencing court is duty-
bound to consider the section 3553(a) factors, it need not descant
upon each and every such factor. See Santa-Soler, 985 F.3d at 98;
see also United States v. Butler-Acevedo, 656 F.3d 97, 100-01 (1st
Cir. 2011) (concluding that certain mitigating factors were
considered even though not referenced in court's stated
rationale).
Here, moreover, even though the district court did not
address the defendant's need for substance abuse and mental health
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treatment in haec verba before pronouncing sentence, it explicitly
stated that it had considered defense counsel's arguments in
mitigation. Indeed, the court indicated that it had imposed a
lighter sentence in consequence of those arguments. And to cinch
the matter, the court — after pronouncing the forty-eight-month
sentence — recommended both substance abuse and mental health
treatment during the defendant's incarcerative term. These
recommendations show, with conspicuous clarity, the court's
awareness of the defendant's continuing need for treatment.
We need go no further.2 For the reasons elucidated
above, the challenged sentence is summarily
Affirmed. See 1st Cir. R. 27.0(c).
2 For the sake of completeness, we note that some of the
defendant's objections to the sentence might be characterized as
procedural. See Del Valle-Rodríguez, 761 F.3d at 176 (explaining
that "[t]he procedural dimension [of sentencing challenges]
includes errors such as failing to consider appropriate sentencing
factors, predicating a sentence on clearly erroneous facts, or
neglecting to explain the rationale for a variant sentence
adequately"). But because it is the defendant's burden to frame
and develop his arguments, we have addressed his claims of
sentencing error on their own terms. It is, however, plain that
even if we recharacterized the claims as procedural instead of
substantive, they would fail.
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