FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO HON. CARMEN CONSUELO CEREZO, U.S. DISTRICT JUDGE.
Pimentel-Soto and Kendys Pimentel-Soto Law Office on brief
Emilia Rodríguez-Vélez, United States Attorney,
Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, and B. Kathryn Debrason,
Assistant United States Attorney, on brief for appellee.
Lynch, Selya, and Lipez, Circuit Judges.
procedural unreasonableness, Elvin Antonio Rivera-Santiago
appeals his 48-month sentence for unlawfully possessing a
firearm. He contends that the district court failed to
adequately explain its reasons for imposing an
above-guideline sentence, that a variant sentence was not
supported by the record, and that the district court
"relied on erroneous facts." After careful review,
that this appeal follows a guilty plea, "we draw the
relevant facts from the plea agreement, the change-of-plea
colloquy, the undisputed portions of the presentence
investigation report ("PSR"), and the transcript of
the disposition hearing." United States
v. O'Brien, 870 F.3d 11, 14 (1st Cir.
2017). Rivera-Santiago was charged with being a felon in
possession of a firearm after police officers found firearms,
magazines, and ammunition at the home he shared with his
partner and his seven-year-old daughter, which the officers
searched pursuant to a search warrant, and in his vehicle,
which they obtained his consent to search. Specifically, the
officers found: two empty, large-capacity .40-caliber
magazines for a Glock pistol and forty-two rounds of
.40-caliber ammunition in the bedroom closet; a Glock pistol
loaded with twenty-one rounds of .40-caliber ammunition on
the driver's seat of Rivera-Santiago's vehicle;
another Glock pistol loaded with forty-eight rounds of
.40-caliber ammunition underneath the driver's seat; and
three Glock .40-caliber magazines, containing a total of
sixteen rounds of ammunition, in the driver's-side door
pocket. The officers also found a "chip" used to
convert semi-automatic Glocks into fully automatic firearms
on top of a gun cleaning kit on the kitchen counter.
Rivera-Santiago admitted to possessing all the firearms,
magazines, and ammunition. He had previously been convicted
of illegal possession of a firearm as a prohibited person and
was serving a 36-month term of federal supervised release for
the prior conviction at the time of his arrest.
to the plea agreement, Rivera-Santiago pleaded guilty to
count one of a two-count indictment, illegal possession of a
firearm by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). The parties agreed to
recommend sentences within the applicable guideline range,
with Rivera-Santiago permitted to "request a sentence at
the lower end of the applicable guideline range while the
United States may request a sentence at the upper end."
calculated Rivera-Santiago's total offense level at 17
and his criminal history category at III, for a guideline
range of 30 to 37 months. The calculation took into account
Rivera-Santiago's prior conviction for possession of a
stolen semi-automatic firearm with an extended magazine and
additional loaded magazines, and his commission of the
current offense while on supervised release. Neither side
objected to the PSR.
sentencing hearing, defense counsel requested a low-end
guideline sentence of 30 months while the government
requested an upper-end guideline sentence of 37 months.
Defense counsel highlighted, inter alia,
Rivera-Santiago's difficult upbringing and the fact that
he faced a sentence of incarceration in the pending
revocation matter. The government noted that (1) the offense
involved two weapons and several extended magazines; (2) the
conduct was essentially the same as that underlying
Rivera-Santiago's prior conviction; (3) he committed the
present offense while less than a year out of prison and
still on supervised release; and (4) he had committed several
rules violations while incarcerated awaiting sentencing. As
noted in the PSR, Rivera-Santiago's incarceration
infractions included circulating money illegally inside the
prison, "refusing to obey an order," and
"being insolent [to] staff." The government argued
that his behavior, in general, exhibited a "serious
disrespect for the law and authority."
district court agreed with the guideline range specified by
the PSR, i.e., 30 to 37 months. The court then addressed the
sentencing factors prescribed by 18 U.S.C. § 3553(a). It
noted Rivera-Santiago's personal characteristics,
including his parenthood, and pointed out that he had
committed the present offense while on supervised release for
his prior conviction. The court also catalogued the two
semi-automatic weapons, multiple extended magazines, and
multiple rounds of ammunition that were in his possession.
After stating that it had considered the § 3553(a)
factors, "the serious nature of the offense of
conviction, the type of weapon and the [amount] of ammunition
involved, [and] the defendant's criminal history,"
the court imposed a 48-month variant sentence. Defense
counsel immediately "object[ed] to the varian[t]
sentence as procedurally unreasonable," without further
elaboration. In response, the court replied, "I believe
the circumstances of this defendant fully justifies the
[c]ourt's sentence. He's putting at risk his own
safety and that of the community. He's not protecting
himself, his child or the community. It's a very serious
offense and circumstances that he was involved with."
This timely appeal followed.
contends that the 48-month sentence imposed by the district
court is procedurally unreasonable because (1) the court
failed to adequately explain its variant sentence, which he
claims was not supported by the record; and (2) the court
"relied on erroneous facts." The parties
dispute whether he adequately preserved his objections and
thus disagree as to the standards of review. Because we would
affirm the sentence regardless of the standard, we assume,
favorably to Rivera-Santiago, that he preserved his
objections. We therefore review the district court's