FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO Hon. Francisco A. Besosa, U.S. District Judge
N. Rodríguez and JNR Law Group on brief for appellant.
Emilia Rodríguez-Vélez, United States Attorney,
and Kelly A. Zusman, Assistant United States Attorney, on
brief for appellee.
Torruella, Boudin, and Barron, Circuit Judges.
BOUDIN, Circuit Judge.
Manuel Laureano-Pérez ("Laureano") appeals
his sentence following his guilty plea in the district court
to a two-count indictment. One count charged Laureano with
possession of a firearm by a convicted felon, 18 U.S.C.
§ 922(g)(1); the other with unlawful possession of a
machine gun, 18 U.S.C. § 922(o). After a hearing, the
district court on November 2, 2016, sentenced Laureano to
sixty months' imprisonment on each count, to be served
concurrently. Along with other terms, the sentence directed
periodic drug testing of the defendant during his subsequent
background facts are these. On May 5, 2016, Puerto Rico
police agents investigating drug dealing in San Juan saw
Laureano standing by a car and, when he in turn saw their
marked police car, he fled on foot. The police pursued him
and later said they saw Laureano draw a firearm from a fanny
pack, throw it over a fence, and toss the other contents of
the fanny pack on the ground. The police recovered the
firearm, high-capacity magazines for the weapon, and four
cell phones. The authorities then discovered that Laureano,
at the time he fled, had been serving a term of supervisory
release following his federal conviction in 2013 of
possession of cocaine with intent to distribute. 21 §
course, Laureano pled guilty to both counts arising out of
the fanny pack incident. At the sentencing hearing, the
district court learned that two days prior, the judge in
Laureano's original drug distribution case ordered him to
serve two additional years of incarceration for violating his
supervised release terms.
the firearm charges stemming from the fanny pack incident,
the district court determined that the guideline sentencing
range for both counts was thirty-seven to forty-six months in
prison, although the machine gun statute allowed for a
sentence up to and including ten years' imprisonment. 18
U.S.C. § 924(a)(2). The government requested a sentence
at the top of the guideline range, forty-six months. Defense
counsel requested a sentence of thirty-seven months. The
district court ultimately varied from the guideline
recommendation, imposing a sentence of sixty months on each
count, to run concurrently. Laureano also received a
three-year term of supervised release for each count, to be
served concurrently. The new prison sentence would run
consecutive with the twenty-four-month sentence on revocation
that Laureano received the prior day, with the new sentence
to be served first.
appeal, Laureano first objects to the sixty-month sentences.
Laureano argues that the district court improperly relied on
community considerations and in doing so, failed to explain
why an upward variance was warranted.
before the end of the sentencing hearing, defense counsel
offered a portmanteau reference to the procedural and
substantive unreasonableness of the sentence--a classic
general objection rather than a specific one. United
States v. Matos-de-Jesús, 856 F.3d 174, 177-178
(1st Cir. 2017); United States v. Soto-Soto, 855
F.3d 445, 448 n.1 (1st Cir. 2017). Our circuit case law is in
some disorder, see United States v.
Millán-Román, 854 F.3d 75, 80-81 (1st Cir.
2017); United States v. Vargas-García, 794
F.3d 162, 167 (1st Cir. 2015); United States v.
Ruiz-Huertas, 792 F.3d 223, 228 & n.4 (1st Cir.
2015), but whether reviewed for abuse of discretion or for
plain error, the district court's position stands.
sentencing, the district court judge referred to
"violent crimes and murders" occurring in
"these weapons cases" and an uptick in the number
of murders in Puerto Rico. He also referred to a joint
firearms initiative and local law enforcement strategies to
curtail the murder rate.
district court has considerable latitude to vary above or
below the once rigidly enforced guidelines sentencing range,
Gall v. United States, 552 U.S. 38, 47-49 (2007),
but some reason must be given or apparent from context.
Additionally, any sentence must concern itself primarily with
the circumstances and behavior of the defendant. United
States v. Flores-Machicote, 706 F.3d 16, 21 (1st Cir.
2013) (a variance "'should typically be rooted
either in the nature and circumstances of the offense or the
characteristics of the offender.'" (quoting
United States v. Martin, 520 F.3d 87, 91 (1st Cir.
the district court judge considered community considerations,
he did not ignore Laureano's individual circumstances,
nor did he fail to justify the variance. See United
States v. Paulino-Guzman, 807 F.3d 447, 450-451 (1st
Cir. 2015). The judge explicitly discussed Laureano's
age, education, and work history, before noting the
seriousness of the offense, respect for law, and deterrence.
See id. ...