United States Court of Appeals
For the First Circuit
No. 16-2454
UNITED STATES OF AMERICA,
Appellee,
v.
JESÚS M. QUIÑONES-OTERO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Torruella, Lynch, Kayatta,
Circuit Judges.
Andrew S. McCutcheon, Assistant Federal Public Defender, Eric
Alexander Vos, Federal Public Defender, and Vivianne M. Marrero-
Torres, Assistant Federal Public Defender, Supervisor, Appeals
Section, on brief for appellee.
Thomas F. Klumper, Assistant United States Attorney, Senior
Appellate Counsel, Mariana E. Bauzá-Almonte, Assistant United
States Attorney, Chief, Appellate Division, and Rosa Emilia
Rodríguez-Vélez, United States Attorney, on brief for appellant.
August 28, 2017
LYNCH, Circuit Judge. Jesús Quiñones-Otero pled guilty
to possession of a firearm by a convicted felon in violation of 18
U.S.C. § 922(g)(1). The district court sentenced Quiñones-Otero
to twenty-seven months of incarceration, which was the top end of
the Guidelines range calculated by the presentence investigation
report. The sentence included three years of supervised release
with a six-month 6:00 PM curfew enforced by electronic monitoring.
Quiñones-Otero appeals from the sentence arguing (1) the district
court abused its discretion when it imposed the curfew and
electronic monitoring requirement and (2) the twenty-seven-month
sentence was procedurally and substantively unreasonable. We
reject these arguments and affirm.
I.
Police officers were on patrol around 6:00 AM, when a
person brought Quiñones-Otero to their attention. The person said
that Quiñones-Otero "was going to get something." Quiñones-Otero
had been in an altercation at a bar earlier that night, had left
the area, and was now returning to a nearby Burger King, where his
car was parked. The police officers observed a weapon tucked into
Quiñones-Otero's waistband. Quiñones-Otero ran when the police
officers announced themselves and ordered him to stop. Quiñones-
Otero threw the weapon away during the chase, and was ultimately
apprehended. The police officers found the weapon after arresting
Quiñones-Otero. During interrogation by agents from the Bureau of
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Alcohol, Tobacco, and Firearms, Quiñones-Otero admitted to having
a prior conviction for violating Puerto Rico copyright law.
Further investigation confirmed that Quiñones-Otero had a prior
conviction, for which he had served two years in prison.
Quiñones-Otero, a former police officer, pled guilty
without a plea agreement to possession of a firearm by a prohibited
person. The Guidelines range, based on an offense level of fifteen
and Quiñones-Otero's criminal history category of II, was twenty-
one to twenty-seven months of imprisonment and between one and
three years of supervised release.1
During the hours of the six-month, 6:00 PM to 6:00 AM
curfew, Quiñones-Otero must "remain at [his] residence except for
employment or other activities approved in advance" by United
States Probation. The court ordered he must also "wear an
electronic device 24 hours a day" and pay the costs of the device.
The court justified the curfew and electronic monitoring
requirements by stating, "[t]he Court finds that the conditions
imposed are reasonably related to the offense of conviction and to
the sentencing factors set forth in 18 U.S.C. [§] 3553" and
1 Quiñones-Otero argued for eighteen months of
imprisonment based in part on the importance of his presence in
the life of his autistic son. The government countered that other
family members could take care of Quiñones-Otero's son during his
incarceration, and argued for thirty months of imprisonment based
on the absence of a serial number on the gun, the serious problem
of illegal firearms in Puerto Rico, and Quiñones-Otero's criminal
history.
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"consistent with the pertinent policy statements issued by the
Sentencing Commission." Quiñones-Otero objected to "the
procedural and substantive unreasonableness of the sentence and to
the imposition of the electronic monitoring period following the
service of the sentence."
II.
The six-month curfew stands. Quiñones-Otero did not
object to the curfew at sentencing, so his objection was not
preserved and plain error review applies. United States v.
Garrasteguy, 559 F.3d 34, 41 (1st Cir. 2009). Quiñones-Otero's
objection to the "electronic monitoring period" only preserved his
objection to the electronic monitoring requirement, not the
curfew. The presentence investigation report suggested a six-
month curfew during non-working hours, but Quiñones-Otero did not
file an objection to the report.
There was no plain error here. Conditions of release
must be "'reasonably related' to (1) the underlying offense or
character and criminal history of the defendant; (2) the need to
deter criminal conduct; (3) the goal of protecting the public; or
(4) the provision of rehabilitative educational, health, or other
treatment for the defendant." United States v. Rivera-López, 736
F.3d 633, 635 (1st Cir. 2013) (quoting U.S.S.G. § 5D1.3(b)).
Conditions of release "must also 'involve no greater deprivation
of liberty than is reasonably necessary.'" Id. (citation omitted)
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Although "the district court is required to provide a reasoned and
case-specific explanation for the [special] conditions it
imposes," a district court's failure to "explicitly provide such
an explanation" does not require us to "automatically vacate the
condition" as long as we can "infer the court's reasoning from the
record." United States v. Fey, 834 F.3d 1, 3 (1st Cir. 2016)
(quoting United States v. Pabon, 819 F.3d 26, 30 (1st Cir. 2016));
see also id. at 6 (affirming a special condition based on record
facts about the defendant's criminal history).
The curfew is sufficiently connected to the underlying
crime, the need to protect the public, and the need for deterrence.
The curfew is closely linked to the underlying crime. Police
observed Quiñones-Otero carrying a firearm on the street at 6:00
AM. By his own account, Quiñones-Otero possessed the gun for
safety purposes, had been working at a bar on the night of his
arrest, and had been beaten by a group of individuals after getting
into an argument on his way out of that bar. The court could have
concluded that a 6:00 PM to 6:00 AM curfew was necessary to ensure
that Quiñones-Otero would not be out of the house during times
when he felt the need to illegally carry a firearm or when he
risked feeling the need to use that firearm.
The condition is also closely connected to the need to
protect the public because of the dangerousness of Quiñones-
Otero's behavior. He was apprehended with a gun that had an
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obliterated serial number and, at sentencing, the government
alluded to the seriousness of the problem of untraceable weapons
in Puerto Rico.
The curfew is also consistent with the need for
deterrence, as this is Quiñones-Otero's second conviction. He was
previously convicted for attempting to commit a copyright
violation, attempting to assault a police officer during the arrest
for that violation, and attempting to destroy evidence of that
violation.
The connections discussed above are enough to uphold the
curfew requirement. In addition to being reasonably related to
the relevant factors, Quiñones-Otero's curfew only lasts for the
first six months of the three-year term of supervised release.
Quiñones-Otero argues that the curfew will interfere with his
participation in positive activities outside work, but he can seek
a modification from the court or approval in advance from his
probation officer if he seeks to engage in legitimate activities.
Given that the curfew is appropriate, Quiñones-Otero's
objection to the electronic monitoring requirement fails. The
electronic monitoring requirement is necessary to ensure
compliance with the curfew, and is not an abuse of discretion.
U.S.S.G. § 5D1.3(e)(5) ("Electronic monitoring may be used as a
means of surveillance to ensure compliance with a curfew order.")
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III.
Quiñones-Otero's claim that the sentence was
procedurally and substantively unreasonable is meritless. The
district court followed the required steps and reached a defensible
result.
A. Procedural Reasonableness
Quiñones-Otero's generic objection to the procedural
reasonableness of the sentence is insufficient to preserve the
objection, so plain error review will apply. United States v.
Matos-de-Jesús, 856 F.3d 174, 177-78 (1st Cir. 2017). There is no
plain error here. "A sentencing is procedurally sound so long as
the district court complies with the ‘specifically delineated
roadmap’ we have previously laid out." United States v. Laureano-
Pérez, 797 F.3d 45, 80 (1st Cir. 2015) (quoting United States v.
Serunjogi, 767 F.3d 132, 142 (1st Cir. 2014)). The district court
completed every step required. Quiñones-Otero argues that the
district court did not properly address the § 3553(a) factors
because it did not specifically mention his relationship with his
son. The district court need not address every § 3553(a) factor
individually in its explanation of the sentence. United States v.
Dixon, 449 F.3d 194, 205 (1st Cir. 2006). Here the district court
stated that it had considered all of the § 3553(a) factors. This
statement "is entitled to some weight." United States v. Clogston,
662 F.3d 588, 592 (1st Cir. 2011) (quoting United States v. Dávila–
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González, 595 F.3d 42, 49 (1st Cir. 2010)). We are particularly
likely to credit a district court's statement that it considered
all the relevant sentencing factors when it imposes a sentence
within the guidelines range, id., and when the particular fact the
court allegedly neglected was a focus of argument prior to
imposition of the sentence, see United States v. Denson, 689 F.3d
21, 28 (1st Cir. 2012). In sum, given Quiñones-Otero's within-
guidelines sentence, the brevity of the sentencing hearing, and
the centrality of Quiñones-Otero's son to his arguments for
leniency, we credit the district court's statement that it
considered all the sentencing factors, including "the history and
characteristics of the defendant." 18 U.S.C. § 3553(a)(1).
Quiñones-Otero's relationship with his son falls under this
factor.
We agree with the government that Quiñones-Otero cannot
rely on the Spanish language documents attached to the sentencing
memorandum he filed with the district court. The Jones Act, 48
U.S.C. § 864, requires that "[a]ll pleadings and proceedings in
the United States District Court for the District of Puerto Rico"
be conducted in English. This means the district court could not
consider the untranslated Spanish language documents, González-
de-Blasini v. Family Dep't, 377 F.3d 81, 88 (1st Cir. 2004), and
we cannot consider them on appeal, Dávila v. Corporación De Puerto
Rico Para La Difusión Pública, 498 F.3d 9, 13 (1st Cir. 2007).
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B. Substantive Reasonableness
There is no error in the substance of the sentence.
Quiñones-Otero must cite "fairly powerful mitigating reasons and
persuade us that the district court was unreasonable in balancing
pros and cons." United States v. Cortés-Medina, 819 F.3d 566, 572
(1st Cir. 2016) (quoting United States v. Clogston, 662 F.3d 588,
593 (1st Cir. 2011)). Quiñones-Otero has only shown that the
district court did not individually address each § 3553(a) factor
in its explanation of the sentence, which we have already held was
not required.
We affirm.
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