United States v. Quinones-Otero

          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


                                    - 2 -
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.


                                   - 3 -
"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)


                                     - 4 -
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


                               - 5 -
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.")




                                      - 6 -
                                   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–


                                   - 7 -
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).


                                     - 8 -
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.




                               - 9 -