United States Court of Appeals
For the First Circuit
No. 21-1528
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ COLÓN-DE JESÚS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Kayatta, Lipez, and Gelpí,
Circuit Judges.
William H. Burgess, with whom Kirkland & Ellis LLP was on
brief, for appellant.
David C. Bornstein, with whom W. Stephen Muldrow, United
States Attorney, and Mariana E. Bauzá-Almonte, Assistant United
States Attorney, Chief, Appellate Division, were on brief, for
appellee.
October 24, 2023
GELPÍ, Circuit Judge. Defendant-Appellant José
Colón-De Jesús ("Colón") appeals his twenty-four-month sentence
for violating conditions of supervised release, stemming from a
2015 conviction, claiming that his sentence is both procedurally
and substantively unreasonable. Finding no error, we affirm.
I. Background
We begin with the offense resulting in Colón's term of
supervised release. In July 2013, Colón was riding a horse on a
roadway at a high rate of speed in Loíza, Puerto Rico, when police
officers observed a firearm in the waistband of his pants. After
he fell from his horse, the police officers recovered a Glock
firearm loaded with sixteen rounds of ammunition from the area
where he landed. Officers subsequently learned that the Glock had
been modified into a machinegun.1 Then, during a search incident
to arrest, the police officers discovered two additional
magazines, each containing fifteen rounds of ammunition. A grand
jury indicted Colón for being a prohibited person in possession of
a firearm, in violation of 18 U.S.C. § 922(g)(1),2 and for illegal
1 A "machinegun" is "any weapon which shoots, is designed to
shoot, or can be readily restored to shoot, automatically more
than one shot, without manual reloading, by a single function of
the trigger." 26 U.S.C. § 5845(b).
2 In 2009, Colón was convicted of unlawfully possessing one
round of ammunition under the laws of Puerto Rico. Because said
offense was "punishable by imprisonment for a term exceeding one
year," Colón was prohibited from "possess[ing] in or affecting
commerce, any firearm or ammunition." § 922(g)(1).
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possession of a machinegun, in violation of § 922(o).3 Colón pled
guilty in January 2014 to the prohibited-person-in-possession
charge and received a sentence of sixty months' imprisonment,
followed by three years of supervised release.4 As a condition of
supervised release, the district court ordered Colón to, among
other things, not commit any new crimes, not possess or use a
controlled substance, and not possess a firearm or ammunition.
In December 2017, Colón completed his prison sentence
and reentered the community on supervised release. During the
summer of 2018, Colón tested positive for cocaine multiple times,
in violation of his conditions. Colón admitted to using cocaine
and began outpatient treatment. Then, in November 2019, Colón was
again arrested on firearms charges.
The events leading to Colón's 2019 arrest are as follows.
While Colón was riding a bicycle in Loíza, police officers observed
a pistol magazine protruding from the front left pocket of his
pants. The officers stopped Colón to determine whether he had a
permit to carry a firearm. After learning that he did not, the
police placed Colón under arrest. The officers seized a Glock
pistol from Colón's person, which they later discovered had been
modified into a machinegun, as well as four high-capacity pistol
3 "Machinegun" has the same meaning in § 922(o) as it does in
§ 5845(b). § 921(a)(24).
4 Colón appealed his sentence, which was affirmed. See United
States v. Colón De Jesús, 831 F.3d 39 (1st Cir. 2016).
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magazines. The officers also recovered from Colón's backpack an
AK-47 type pistol, five high-capacity rifle magazines, one
high-capacity pistol magazine, one standard pistol magazine, and
eighteen capsules "containing [a] white powdery substance which
field-tested positive for cocaine." In total, officers seized
over three hundred rounds of ammunition from Colón. This new
arrest triggered revocation proceedings in Colón's supervised
release case5 and resulted in an indictment charging Colón with
possession of a machinegun, in violation of § 922(o), and
possession of a firearm and ammunition by a prohibited person, in
violation of § 922(g)(1) (hereinafter "case 19-771").
Prior to Colón's revocation proceedings, Colón reached
an agreement with the government in case 19-771 and pled guilty to
the possession-of-a-machinegun charge. He was then sentenced to
forty-one months' imprisonment, followed by three years of
supervised release. When Colón's revocation proceedings commenced
months later -- in March 2021 -- the magistrate judge flagged that
the revocation motion contained allegations beyond what Colón pled
guilty to in 19-771. Later, at a preliminary revocation hearing,
the government represented that it sought revocation based only on
Colón's alleged possession of guns and ammunition in case
5 The probation officer's motion for revocation alleged that,
based on Colón's new arrest, he had violated his conditions of
supervised release by committing a new crime and by possessing a
controlled substance.
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19-771 -- thereby "voluntarily desisting" from seeking revocation
based on Colón's alleged possession of a controlled substance.
Colón subsequently filed a waiver of the preliminary revocation
hearing, which was accepted by the court and resulted in a finding
of probable cause for the supervised release violation
allegations, except those pertaining to controlled substances.
Colón's final revocation hearing took place in May 2021.
At the outset, the judge recited the facts alleged in the probation
officer's revocation motion, including the facts pertaining to the
seizure of capsules believed to be cocaine from Colón's backpack.
The court asked whether Colón was "accepting or contesting the
[supervised release] violations" and his attorney replied, "We are
accepting the violations, Your Honor." Colón's attorney then went
on to explain that Colón pled guilty in case 19-771, and the judge
confirmed that Colón understood that his revocation was based on
his new conviction.
Next came the sentencing portion of the revocation
hearing. Colón's attorney requested a six-month prison sentence,
citing the amount of time that Colón had spent in prison in the
preceding decade, the stiff sentence he received in case 19-771,
the lack of violence in his criminal record, and his issues with
depression and drug dependency, as discussed in the Presentence
Report ("PSR") for case 19-771. The government, in turn, requested
an eighteen-month prison sentence, based on the nature of Colón's
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supervised release violation -- that he was caught with a
"significant amount of ammunition, a firearm, [and] now a machine
gun" and "did not learn from his first [firearms] conviction."
The government explained that the following mitigating evidence
also factored into its sentencing recommendation: that Colón
immediately admitted possession of the firearms and ammunition,
pled guilty, and was remorseful for his conduct.
After the district court found that Colón violated the
conditions of his supervised release, it explained that, in
imposing the sentence, it was considering the "advisory sentencing
guidelines," "chapter seven policy statements regarding revocation
of supervised release," section 3553(a) factors, "the nature and
circumstances of the violations," and "the fact that Mr. Colón of
course engaged in new criminal conduct." Based on Colón's
"Criminal History Category of III" and commission of a "grade A
violation," the applicable sentencing range was eighteen to
twenty-four months' imprisonment for the supervised release
violation.6 Further, the court noted that twenty-four months'
imprisonment was the statutory maximum sentence permitted per
§ 3583(e).
The Sentencing Commission has issued policy statements, as
6
opposed to guidelines, for supervised release violations.
U.S.S.G. § 7A1. Colón does not contest the district court's
calculation of his sentencing range under the applicable policy
statement.
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After establishing the sentencing parameters, the
district court explained its revocation sentence. First, the court
recited Colón's criminal history. In doing so, the court noted
"that in 2009, [Colón] got a conviction for drugs, and still he's
dealing in cocaine. And cocaine was seized from him as well."
The court went on to recite his other criminal convictions
chronologically -- all of which involved the possession of guns or
ammunition -- and highlighted the fact that the newest case
involved "a machine gun, a larger number of ammunitions, and a
larger number of magazines." The court stressed that Colón engaged
in "increased criminal activity" or "increased seriousness in the
type of criminal activity." Second, the court emphasized that
Colón engaged in the conduct at issue while on supervised release,
demonstrating "blatant disregard for the instructions of the
probation officer" and "his conditions of supervised release."
The court further remarked that Colón's conduct "certainly denotes
that he hasn't learned from previous incarceration and
experiences." Third, the court explained that Colón "had
[previously] been given the chance to rehabilitate and adjust" and
"disregarded the opportunities so given to him," citing his prior
supervised release violations for positive drug tests. The court
acknowledged the mitigation evidence presented by Colón's
attorney, specifically that Colón had never been charged with
violent offenses. Nevertheless, the court balanced said evidence
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against the potential for harm associated with the possession of
a machinegun, explaining that the potential for harm factored into
the court's consideration of the seriousness of the offense. The
district court sentenced Colón to twenty-four-months' imprisonment
based on "the seriousness of [his] repeated conduct," and the
hearing concluded without objection from Colón's attorney. This
appeal followed.7
II. Discussion
On appeal, Colón raises both procedural and substantive
challenges to the reasonableness of his sentence for violating his
supervised release conditions. We first tackle his procedural
claims of error. See Gall v. United States, 552 U.S. 38, 51 (2007)
(explaining that procedural challenges should be addressed before
turning to substantive concerns); Ayala-Lugo, 996 F.3d at 55
(same).
A. Procedural Reasonableness Claims
The Supreme Court has defined "significant procedural
error[s]" to include "failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a
7 Colón's notice of appeal was untimely as originally filed;
however, the district court granted his motion to extend the
deadline to appeal, thus rendering his notice of appeal timely.
See United States v. Ayala-Lugo, 996 F.3d 51, 57 n.2 (1st Cir.
2021).
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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. Here,
Colón contends that the district court committed procedural error
at sentencing by relying on the unsubstantiated allegation that
"cocaine was seized from [Colón]" and by making the erroneous
finding that Colón was "dealing in cocaine." While we normally
review alleged procedural errors under an abuse-of-discretion
standard, id., having raised no objection below, Colón concedes
that our review of his procedural claims is for plain error, see
United States v. Millan-Isaac, 749 F.3d 57, 66 (1st Cir. 2014).
"To survive plain-error review and merit resentencing,
a defendant must make four showings: (1) an error occurred,
(2) that was clear or obvious, (3) that affected his substantial
rights, and (4) that seriously impaired the fairness, integrity,
or public reputation of judicial proceedings." Id. (citing United
States v. Olano, 507 U.S. 725, 732-37 (1993)). We begin with
Colón's "seizure" claim.
1. District Court's "Seizure" Statement
Colón contends that the district court's finding -- that
"cocaine was seized from him" -- constitutes obvious error because
it came from an unsubstantiated report, thus violating our holding
in United States v. Marrero-Pérez that "no weight should be given
in sentencing to arrests not buttressed by convictions or
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independent proof of conduct." 914 F.3d 20, 22 (1st Cir. 2019).
The facts before us now, however, are quite distinguishable from
those presented in Marrero-Pérez. There, the district court relied
upon several arrest allegations in a PSR -- all of which lacked
detail or were unaccompanied by a conviction -- in imposing an
upwardly variant sentence. Id. at 22-23. We concluded that it
was error for a sentencing judge to equate a bare arrest allegation
with guilt, absent "some greater indicia of reliability that the
conduct underlying the arrest took place." Id. at 23-24.
Here, unlike Marrero-Pérez, there is no claim that the
district court "equate[d] arrest with guilt." Id. at 23. First,
the district court referenced Colón's conduct at sentencing, not
an arrest. See United States v. Mercer, 834 F.3d 39, 49-50 (1st
Cir. 2016) (distinguishing between a district court relying on
dismissed charges and "relying on certain conduct that took place
in connection with the dismissed charges"). Second, Colón does
not argue that, in stating "cocaine was seized from him," the
district court improperly inflated his sentence because it
considered him guilty of the crime of drug possession for
sentencing purposes.
Rather, we understand Colón to be arguing more broadly
that it was error for the district court to rely, at sentencing,
on the allegation that Colón possessed cocaine at the time of his
2019 arrest because said allegation was unsubstantiated, meaning
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that the court lacked "indicia of reliability that the
conduct . . . took place." Marrero-Pérez, 914 F.3d at 24. In
support of this argument, Colón points out that the only details
pertaining to his arrest with cocaine came from the probation
officer's recitation of the facts, in the motion to revoke
supervised release in the present case and the PSR for case 19-771.8
It is well established in our circuit that "factual
findings made at sentencing must be supported by a preponderance
of the evidence." United States v. Rivera-Ruiz, 43 F.4th 172, 181
(1st Cir. 2022) (quoting United States v. Castillo-Torres, 8 F.4th
68, 71 (1st Cir. 2021)). Meaning that, to avoid error, "a sentence
must be based on 'information [that] has sufficient indicia of
reliability to support its probable accuracy.'" Id. (quoting
United States v. Morgan, 384 F.3d 1, 5 (1st Cir. 2004)); U.S.S.G.
§ 6A1.3(a). A court's finding is erroneous if it is "based solely
on unreliable evidence." Castillo-Torres, 8 F.4th at 71.
Turning to the case at hand, we discern no error in the
district court's reliance on the PSR in case 19-771 for its finding
that "cocaine was seized from [Colón]." We have previously
explained that a district court does not err by relying on
It is undisputed by the parties that Colón did not plead
8
guilty to any drug-related offense in case 19-771 and that, when
offered the opportunity to substantiate the drug allegations at a
probable cause hearing for the supervised release violations, the
government declined to do so.
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unobjected-to portions of a PSR at sentencing because, "generally,
a PSR bears sufficient indicia of reliability." United States v.
Díaz-Rivera, 957 F.3d 20, 27 (1st Cir. 2020) (quoting United States
v. Rondón-García, 886 F.3d 14, 25 (1st Cir. 2018)); see also United
States v. Portell-Márquez, 59 F.4th 533, 537-38 (1st Cir. 2023)
("We have found such indicia of reliability to be present where
the defendant . . . did not object to a [PSR] setting forth the
conduct [underlying the arrest]."); Rivera-Ruiz, 43 F.4th at 184
(concluding that the district court did not err in relying on an
administrative complaint at sentencing where the allegations
underlying the complaint were sufficiently detailed in the
unobjected-to PSR and thus "supported a finding that the underlying
conduct more likely than not occurred"); United States v.
Miranda-Díaz, 942 F.3d 33, 40 (1st Cir. 2019) ("Where conduct
surrounding a dismissed charge is 'set forth in undisputed portions
of the [PSR],' the district court is 'entitled to rely on that
conduct when sentencing' the defendant." (quoting Mercer, 834 F.3d
at 50)).
Here, Colón did not object to the district court's
consideration of the PSR for case 19-771 during sentencing on his
supervised release violation. In fact, Colón referenced the PSR
multiple times in support of his own argument for a more lenient
sentence. Nor did Colón object to the factual allegations
contained within said PSR. The PSR, in its discussion of "The
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Offense Conduct" underlying case 19-771, stated that law
enforcement seized the bag that Colón was carrying when he was
arrested and that the bag contained, among other things,
"[e]ighteen (18) capsules containing [a] white powdery substance
which field-tested positive for cocaine." Colón's failure to
object to the PSR alone rendered it sufficiently reliable to anchor
the district court's finding that "cocaine was seized from him"
under our existing precedent. See United States v. Cruz-Olavarria,
919 F.3d 661, 665-66 (1st Cir. 2019) (explaining that it was proper
for the district court to consider dropped drug charges at
sentencing for a supervised release violation because "the
unchallenged facts surrounding [the defendant's] arrest [were]
contained in the [PSR]"); Mercer, 834 F.3d at 50 (concluding that
the district court did not err at sentencing in relying on "conduct
that took place in connection with [defendant's] dismissed
charges . . . [b]ecause that conduct was set forth in undisputed
portions of the PSR").
Here, however, other "indicia of reliability" support
the district court's finding that Colón possessed cocaine when he
was arrested in 2019. For example, Colón admitted to using cocaine
in August 2018, in violation of his supervised release conditions,
after testing positive for the substance multiple times.
Additionally, Colón admitted to continued drug use during his
sentencing argument for the supervised release violation,
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specifically referring the district court to the PSR's substance
abuse section, which discussed his cocaine use. These admissions,
coupled with the unobjected-to facts in the PSR, make it more
likely than not that "cocaine was seized from [Colón]" when he was
arrested in 2019. See United States v. Rodríguez-Reyes, 925 F.3d
558, 565 (1st Cir. 2019) (concluding that evidence supported the
district court's finding that the defendant engaged in conduct
underlying his drug possession charges where defendant admitted to
drug use in his sentencing memorandum, tested positive for
marijuana, and did not object to the PSR's discussion of his drug
use). Thus, we find no error in the district court's "seizure"
statement.9
2. District Court's "Dealing" Statement
Next, Colón claims that the district court procedurally
erred in finding that "still [Colón is] dealing in cocaine" because
no factual support exists in the record for the assertion. Colón's
argument presumes that, when the district court said, "dealing
in," it meant "selling." In support of his interpretation, Colón
cites Merriam-Webster's first definition of "deal in," meaning "to
buy and sell (something) as a business," along with numerous
examples where courts, including our own, have used the term
9 Given that Colón's revocation proceedings were intrinsically
intertwined with case 19-771, he cannot reasonably claim surprise
that his PSR was later used as it was.
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"dealing in" to mean "selling" in the context of drugs. Deal in,
Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictiona
ry/deal%20in (last visited Oct. 18, 2023). Per Colón, the only drug-related
evidence in the record was that he personally used cocaine, thus the
district court's finding about "dealing" was erroneous.
The government, also citing case law and a
Merriam-Webster definition, responds that "dealing in" can mean
"to use or be involved in (something)." Id. (referencing second
definition of "deal in"). Countering Colón's criticism that said
definition only applies to "concepts or intangibles," the
government points us to the historical usage of "deal," which the
government argues means to "use or consume" in the cited example
referring to malt liquor. Deal, Definition II.15, Oxford English
Dictionary Online, https://www.oed.com/dictionary/deal_v?tab=mea
ning_and_use-paywall#7525250 (last visited Oct. 18, 2023) ("All
malt liquors fatten, or at least bloat; and I hope you do not deal
much in them." (citation omitted)). According to the government,
the district court did not err in finding that "still [Colón is]
dealing in cocaine" because, as discussed supra, sufficient
evidence was presented at sentencing that he continued "to use" or
"be involved" with cocaine.
Recall, as outlined above, that we review Colón's
procedural challenges for plain error only and that, to prevail,
he must show, among other things, that a "clear or obvious" error
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occurred. Millan-Isaac, 749 F.3d at 66 (citing Olano, 507 U.S. at
732-37). For reasons discussed infra, we conclude that Colón has
not met his burden.
Whether the district court's finding -- that Colón was
"dealing in cocaine" -- was erroneous depends on the district
court's intended meaning of "dealing." While we agree with Colón
that "dealing" often means "selling" in the context of drugs, the
government has proffered another plausible interpretation of the
term used here. The government's "to use" or "be involved" with
interpretation of "dealing" finds support in the cited dictionary
definitions but also in the record when viewed as a whole. Here,
the only reference to drugs at sentencing involved Colón's
possession or personal use of substances -- there was no evidence
of drug sales -- thus making it plausible that the district court
meant "use" or "involvement" when it said "dealing."10 Further,
the district court referenced Colón's 2009 drug conviction
immediately prior to its statement that "still he's dealing in
cocaine." The use of "still" here suggests that the district court
was referring to this past conduct, which involved possession of
Colón argues that it is precisely the lack of evidence of
10
drug sales that renders the district court's "dealing" finding
erroneous. Said argument would be more compelling if there was no
evidence in the record whatsoever pertaining to drugs. Where, as
here, there is such evidence, we must consider whether the
government's interpretation of the district court's "dealing"
statement can be rationally reconciled with the record.
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an illegal substance, to indicate that Colón continued to engage
in the same conduct, despite his prior conviction.11 Viewed in
context, we cannot conclude that the government's suggested
interpretation is irrational.
Having been presented with two plausible interpretations
of "dealing," we find the district court's use of the term
ambiguous. Given this ambiguity, we cannot find that the alleged
error, if one occurred at all, was "clear or obvious." See United
States v. Walker-Couvertier, 860 F.3d 1, 13 (1st Cir. 2017)
(declining to give the "most pernicious meaning" to ambiguous
language on appeal in concluding no plain error, particularly
"where the defendant[] did not contemporaneously object"
(alteration in original) (quoting United States v. Sepulveda, 15
F.3d 1161, 1188 (1st Cir. 1993))); United States v. Pacheco, 434
F.3d 106, 115 (1st Cir. 2006) (holding that no plain error occurred
where ambiguity "shroud[ed] the district court's statements"
pertaining to a directed verdict); United States v. Munson, 819
F.2d 337, 344 (1st Cir. 1987) (concluding that the defendant failed
to establish plain error on appeal where the statements at issue
were "subject to various interpretations"). Having failed to
11There is some factual dispute about whether Colón's 2009
conviction involved cocaine or marijuana. We note that, at
sentencing, Colón's counsel represented that the 2009 conviction
was for cocaine. Nevertheless, the salient point here, which is
undisputed, is that the prior conviction was for possession of a
substance, not for selling it.
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object before the district court, which could have clarified what
it meant by "dealing in," Colón "cannot now use the ambiguity as
a basis for assigning error." Munson, 819 F.2d at 344. As such,
we discern no plain error in the district court's "dealing"
statement.12 Having resolved Colón's procedural claims of error,
we turn next to his substantive challenges. See Gall, 552 U.S. at
51; Ayala-Lugo, 996 F.3d at 55.
B. Substantive Reasonableness Claims
We note at the outset that Colón did not object to the
substantive reasonableness of his sentence below. Citing
Holguin-Hernandez v. United States, he asserts that, because he
argued for a shorter sentence than the one imposed, his challenges
to the substantive reasonableness of his sentence are preserved
12 Even if we were to assume for argument's sake that the
district court's "dealing" statement amounted to "clear or obvious
error," Colón fails to persuade us that said hypothetical error
"affected his substantial rights." Millan-Isaac, 749 F.3d at 66
(citation omitted). To meet this burden, Colón must show that
"there is 'a reasonable probability that, but for the error, the
district court would have imposed a different, more favorable
sentence.'" United States v. Rodríguez–Meléndez, 828 F.3d 35, 39
(1st Cir. 2016) (quoting United States v. González–Castillo, 562
F.3d 80, 83 (1st Cir. 2009)). While he is correct that the
erroneous finding need only be a "salient" factor in the district
court's sentencing analysis, see id., his claim still falls short.
It is evident from the record that the district court's
top-of-the-Guidelines sentence was driven by the court's concern
over Colón's repeated unlawful possession of weapons, which
increased in severity (in terms of the type of firearm possessed,
as well as the amount of ammunition), posed a great danger, and
demonstrated Colón's lack of remorse. Thus, even assuming
favorably to Colón that the district court's "dealing" statement
was made in error, his challenge still misses the mark.
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and that our review is for abuse of discretion. 140 S. Ct. 762,
766 (2020). The government concurs with Colón but only insofar as
he raises a general claim that his sentence is unreasonably long.
Colón's claims on appeal go further, however, as he argues that
the district court erred by failing to provide a case-specific
rationale for its sentencing decision and by placing undue weight
on the seriousness of the offense. The government contends that
these specific claims are unpreserved and should be reviewed only
for plain error, which Colón waived when he failed to argue the
plain error standard in his opening brief.
We agree with the government for the reasons that we
proceed to explain. In Ayala-Lugo, we held that "a general
objection to the [procedural and substantive] reasonableness of
[a] sentence . . . is not sufficient to give the district court
notice of the specific issue raised on appeal." 996 F.3d at 56-57
(internal quotations omitted) (applying plain error review to
unpreserved procedural and substantive claims); see also United
States v. Carrasquillo-Sánchez, 9 F.4th 56, 58 (1st Cir. 2021)
(concluding that an objection "to the length of the sentence
imposed" preserved only a claim that the sentence was substantively
unreasonable "due to its length and independent of the adequacy of
the explanation offered by the District Court in support of it").
Moreover, we have found challenges to the adequacy of a court's
sentencing explanation, when framed as a procedural error,
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preserved only where the defendant raised specific objections
before the district court.13 See United States v. Rivera-Berríos,
968 F.3d 130, 134 (1st Cir. 2020) (finding procedural claim of
error pertaining to the adequacy of the court's sentencing
explanation preserved where defendant's "counsel made clear that
he believed that . . . the court had not articulated any
cognizable grounds that would support an upward variance"); United
States v. García-Pérez, 9 F.4th 48, 52-53 (1st Cir. 2021)
(concluding that a procedural claim was preserved where the
defendant argued, before the district court, "'that the Court gave
little weight to mitigating factors' and 'that the Court gave
excessive weight to aggravating factors'"). Absent specific
objections made to the district court, we review for plain error.
United States v. Muñoz-Fontanez, 61 F.4th 212, 214 (1st Cir. 2023)
(applying plain error review to an unpreserved procedural
challenge to the adequacy of the district court's sentencing
explanation). Here, Colón did not raise before the district court
any of the specific, substantive challenges that he now argues on
appeal, thus they are unpreserved and plain error review applies.
Ayala-Lugo, 996 F.3d at 56-57. And, because he failed to argue
13United States v. García-Pérez, 9 F.4th 48, 52 n.1 (1st Cir.
2021) ("Under our precedents, [an inadequate explanation] argument
'can be characterized as either a [claim of] procedural error or
a challenge to the substantive reasonableness of the sentence.'"
(second alteration in original) (quoting United States v.
Crespo-Ríos, 787 F.3d 34, 37 n.3 (1st Cir. 2015))).
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the plain error standard in his opening brief, his specific
challenges to the substantive reasonableness of his sentence are
waived.14 See United States v. Espinoza-Roque, 26 F.4th 32, 36
(1st Cir. 2022) ("[Defendant] waived [the] claim on appeal by
failing to address the governing standard of plain error review in
his opening brief.").
Nevertheless, Colón, by arguing for a more lenient
sentence than the one that the district court imposed, adequately
preserved his claim that his sentence was unreasonably long. See
Holguin-Hernandez, 140 S. Ct. at 766. We review preserved
challenges to the substantive reasonableness of a sentence for
abuse of discretion. United States v. Vargas-Martinez, 15 F.4th
91, 102 (1st Cir. 2021). "When evaluating [said challenges], 'the
key inquiry is whether the sentencing court has articulated a
plausible rationale and reached a defensible result.'" United
States v. De Jesús-Torres, 64 F.4th 33, 40 (1st Cir. 2023) (quoting
United States v. Coombs, 857 F.3d 439, 452 (1st Cir. 2017)). We
remain 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.
14 We note that, even after the government asserted in its
opening brief that plain error review applied to Colón's specific
substantive claims, Colón made no effort in his reply brief to
argue plain error. Instead, Colón simply maintained that his
claims were adequately preserved.
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2011) (citation omitted). With these principles in mind, we turn
to the case at hand.
Here, the sentence imposed by the district
court -- twenty-four months' imprisonment -- fell within the range
provided by the Sentencing Commission's applicable policy
statement, which was eighteen to twenty-four months. U.S.S.G
§ 7B1.4(a). Given that Colón's sentence falls "within [the]
properly calculated guideline range, challenging its substantive
reasonableness involves a 'heavy lift.'" De Jesús-Torres, 64
F.4th at 41 (citation omitted). To meet this burden, Colón "must
adduce fairly powerful mitigating reasons and persuade us that the
district court was unreasonable in balancing pros and cons."
Clogston, 662 F.3d at 593 (quoting United States v. Madera–Ortiz,
637 F.3d 26, 30 (1st Cir. 2011)). His arguments fail to convince
us.
First, unlike the circumstances in United States v.
Franquiz-Ortiz, 607 F.3d 280 (1st Cir. 2010), cited by Colón, the
district court here explained the basis for its sentencing
decision. In addition to hearing from the parties, the district
court considered the § 3553(a) factors, "the nature and
circumstances of the violations," and Colón's specific
conduct -- "being in possession of . . . 352 rounds of ammunition,
the Glock pistol, which is the machine gun and basis for the
conviction in the [new] case, an AK-47 pistol, and [eleven]
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magazines of which four were high capacity." In support of its
sentence, the district court recited Colón's criminal history and
pointed to the fact that his supervised release violation
represented "increased criminal activity, or increased seriousness
in the type of criminal activity," given that he possessed a
machinegun (unlike his prior conviction for possessing a firearm)
and a larger number of magazines and ammunition. The district
court also explained that the fact that Colón engaged in this
conduct while on supervised release demonstrated "blatant
disregard for the instructions of the probation officer, his
conditions of supervised release, and certainly denote[d] that he
hasn't learned from previous incarceration and experiences." The
court credited Colón's lack of a violent record but stated that it
did not erase the potential for harm associated with the possession
of a machine gun, which factored into the seriousness of the
offense.15 Also weighted into the decision was the fact that Colón
"had been given the chance to rehabilitate and adjust" -- a
reference to his prior violations for positive drug tests -- but
that "he disregarded the opportunities so given to him." The court
imposed the maximum sentence in light of "the seriousness of the
While Colón takes issue with the district court's treatment
15
of evidence "weighing against a statutory-maximum sentence," we
have previously made clear that the fact "[t]hat the sentencing
court chose not to attach to certain of the mitigating factors the
significance that the appellant thinks they deserved does not make
the sentence unreasonable." Clogston, 662 F.3d at 593.
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repeated conduct" of Colón. We find nothing implausible about the
district court's sentencing rationale.
Further, the maximum sentence imposed here represents a
defensible result. To the extent that Colón argues that he should
have received a lighter revocation sentence because he was already
punished for his conduct in case 19-771, we find his argument
unavailing. Our case law establishes "that when a supervised
releasee 'transgresses the criminal law as well as the conditions
of supervision, there is no legal impediment in sentencing [him]
both as a criminal and as a supervised release violator.'" United
States v. Tanco-Pizarro, 892 F.3d 472, 483 (1st Cir. 2018) (quoting
Coombs, 857 F.3d at 451). Here, Colón, who was on supervised
release following a conviction for being a prohibited person in
possession of a firearm, was found, yet again, in possession of
firearms, one of which was a machinegun, as well as in possession
of over three hundred rounds of ammunition and multiple magazines.
And this came after Colón had already violated his supervised
release by testing positive for cocaine on at least three occasions
and was referred to treatment instead of being revoked. Given
these circumstances, the imposition of the maximum sentence
allowed was a defensible result.
Finding no abuse of discretion in the length of Colón's
sentence and his other specific challenges waived, we conclude
that Colón's sentence was substantively reasonable.
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III. Conclusion
Having resolved Colón's procedural and substantive
challenges, his revocation sentence is affirmed.
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