FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Juan M. Perez-Gimenez, U.S. District Judge]
J. Paez on brief for appellant.
Emilia Rodríguez-Vélez, United States Attorney,
Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, and Francisco A.
Besosa-Martínez, Assistant United States Attorney, on
brief for appellee.
Howard, Chief Judge, Lynch and Lipez, Circuit Judges.
Viloria-Sepulveda pled guilty to illegal possession of a
machine gun in violation of 18 U.S.C. § 922(o). The
district court sentenced Viloria-Sepulveda to sixty
months' imprisonment, a sentence above the applicable
guidelines sentencing range (GSR) but below the statutory
maximum of ten years. 18 U.S.C. § 924(a)(2).
challenges this sentence on procedural and substantive
grounds. Procedurally, he contends that the district court
erred in considering two types of evidence: (1) photographs
found on the defendant's cell phone showing the defendant
and others handling drugs, drug paraphernalia, and guns,
including military-style assault weapons, and (2) information
about the pervasiveness of guns and gun violence in Puerto
Rico police officers from the Drug Division of San Juan had a
member of a violent drug trafficking organization under
physical surveillance on January 30, 2017. The officers
conducting the surveillance saw a Toyota Corolla escorting
the gang member's car. Viloria-Sepulveda was the driver
of the Toyota, as the police would later discover.
officers did a record check of the Toyota's license
plates. Learning that the Toyota had been reported missing
and should be recovered, the police stopped the car. As the
officers neared the front driver's side window, they
watched Viloria-Sepulveda (who was sitting in the
driver's seat) attempt to put a firearm inside a bag on
the front passenger seat. The officers ordered
Viloria-Sepulveda to roll down the window, but he instead
persisted in trying to hide the firearm. So the officers told
Viloria-Sepulveda to step out of the car, which he did, and
they placed him under arrest.
officers determined that the gun recovered from the bag was a
Glock 34 pistol modified to shoot automatically and loaded
with an extended magazine containing twenty-four bullets.
Viloria-Sepulveda volunteered to the officers that the weapon
search of the Toyota uncovered another extended magazine
(with twenty-four rounds of ammunition) for the Glock, a face
mask, a drug ledger, walkie talkies, and three cell phones. A
search (to which Viloria-Sepulveda consented) of one of the
cell phones and its applications, including a messaging
application called WhatsApp, uncovered multiple photographs
of Viloria-Sepulveda and others carrying firearms of
different types, including assault-style weapons; of drug
ledgers; of a scale; and of substances in plastic bags and in
federal grand jury in Puerto Rico indicted Viloria-Sepulveda
on one count of illegal possession of a machine gun.
See 18 U.S.C. §§ 922(o), 924(a)(2).
Viloria-Sepulveda entered a straight ...