United States v. Colon-Cordero

91 F.4th 41

• Court: Court of Appeals for the First Circuit
• Decided: January 19, 2024
• Docket: 22-1171
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

Nos. 22-1171 22-1172

UNITED STATES OF AMERICA,

Appellee,

v.

LUIS ÁNGEL COLÓN-CORDERO, a/k/a Luis El Loco, a/k/a El Loco,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Rikelman, Lipez, and Thompson, Circuit Judges.

Alejandra Bird-López, Research and Writing Attorney, with whom Eric Alexander Vos, Federal Public Defender, and Franco L. Pérez-Redondo, Assistant Federal Public Defender, Supervisor, Appeals Section, were on brief, for appellant. Julia M. Meconiates, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

January 19, 2024 THOMPSON, Circuit Judge. When authorities picked up

Luis Ángel Colón-Cordero (Colón) for violating some terms of his

supervised release, they found evidence of other violations as

well as evidence of new criminal conduct. And so, another in a

long line of examples of folks slipping into a criminal-justice-

system spin cycle, Colón found himself back in court for sentencing

hearings regarding the new criminal case against him and revocation

of his supervised release. The parties agreed to request within-

guidelines sentences, but the district court, not bound by the

parties' recommendations, imposed an upwardly variant sentence of

imprisonment for the new criminal conduct and a tip-top-of-the-

guidelines-range term of imprisonment for violating his supervised

release, with those sentences to run consecutively. On appeal,

Colón raises a number of arguments challenging the pronounced

sentences as unreasonable. For reasons we'll explain, we vacate

and remand for resentencing.

BACKGROUND

We begin with the relevant facts and travel, providing

the bulk of the particulars now (bear with us) with plans to add

some more detail later as needed. As usual when a sentencing

appeal follows a plea of guilty, we draw the facts from the

uncontested parts of the probation office's presentence

investigation report (PSR), the plea agreement, and the transcript

- 2 - of the sentencing hearing. See United States v. Morales-Cortijo,

65 F.4th 30, 32 (1st Cir. 2023).

Colón's History, Supervised Release Term, Violations, and New Criminal Case

Back in 2017, Colón pleaded guilty to conspiracy to

possess with intent to distribute controlled substances in

violation of 21 U.S.C. § 846, and he was sentenced to 45 months

and 19 days of imprisonment and 8 years of supervised release.

Colón discharged that term of immurement and was released in 2019,

and from there he began his term of supervised release.

Now, it is undisputed that Colón is a person with an

intellectual disability, and, as the record makes pellucid, he has

a history of mental health issues. Some examples: a school

referral prompted him to see a mental health specialist when he

was 15; he heated a car antenna, then used it to burn his forehead

and under his eyes; he has used cigarettes to burn his forearms

and blades to cut himself; and he has visible scars from his self-

inflicted burning and cutting. And, as of his 2017 plea, a then-

25-year-old Colón had a history of substance abuse, including

smoking marijuana (25 joints a day) since he was 18, and, at the

same age, developing a use of non-prescription Xanax, Percocet,

and Klonopin (one or two pills daily), plus occasionally mixing

some of this drug use with alcohol.

- 3 - And so, as part of his August 2019 supervised release,

Colón was referred to substance abuse and mental health treatment.

The mental health treatment to which Colón was later referred in

January 2020 screeched to a halt with the advent of the global

COVID-19 pandemic and its resulting lockdowns, but Colón continued

his substance abuse treatment, which he reported he liked going to

and found helpful. For 14 months during his supervised release

term (up until he was arrested, anyway), Colón tested positive to

cannabinoids two times out of seventeen tests (more on this later)

and failed to report to the drug-testing program once.

Aside from those two positive drug tests, which were

violations in and of themselves pursuant to the terms of his

release, Colón violated another supervised release condition when

he failed to stay at his address of record (his mother's house).

After being called out for moving out, Colón returned to his mom's

place, but he didn't stay put long: Two days later, probation

reported, he'd again moved out without notice. In response,

probation successfully requested an arrest warrant, and local

authorities searched the place where Colón was thought to be

residing. During the search, officers found under Colón's bed a

loaded AR-style rifle with 30 rounds of ammunition along with an

extra magazine loaded with an additional 30 rounds of ammunition.

Colón admitted ownership of the rifle, nonchalantly observing to

- 4 - the officers "that he liked rifles." The search team also found

presumptive synthetic marijuana1 and rolling paper in his car.

A federal grand jury indicted Colón on a single count of

violating 18 U.S.C. § 922, which generally proscribes certain

categories of people from possessing firearms or ammunition. Colón

waived his preliminary revocation hearing for the supervised

release violations and on the new charge pleaded guilty to being

a felon in possession of ammunition (60 rounds) pursuant to a plea

agreement.2

The parties proposed in the plea agreement an advisory

guidelines calculation that started with a base offense level of

22, minus three levels for acceptance of responsibility, and

determined a total offense level (TOL) of 19. And the parties

also agreed they'd each request a sentence within the to-be-tallied

guidelines range for the TOL of 19 when combined with the

undetermined Criminal History Category (CHC). The PSR landed on

19 as the TOL, too, then laid out Colón's criminal history,

including his Commonwealth-side drug conviction (possessing

controlled substances and drug paraphernalia) and the federal drug

conviction (conspiracy to possess with intent to distribute

1 The record does not reflect that this substance was ever tested and confirmed to be synthetic marijuana. 2 The parties agree the agreement's waiver-of-appeal provision

does not operate as a bar to this appeal since the provision was conditioned on the district court sentencing Colón to a term of 46 months' imprisonment or less -- which condition is not met here.

- 5 - narcotics). These tabulations dictated a CHC of IV, and, together

with the TOL of 19, yielded a guidelines sentencing range of 46 to

57 months' imprisonment.

Each side then filed a sentencing memorandum in support

of its recommended sentence (a low-end 46 months from Colón; a

high-end 57 months from the government) in anticipation of the

upcoming hearings.

The Sentencing Hearings

Before the district court in February 2022, the first

sentencing matter taken up was Colón's new criminal case (the

ammunition-possession indictment). Counsel for Colón started with

some objections to the PSR, two of which are relevant to today's

analysis. First, counsel argued the district court should append

to the PSR a psychometric evaluation filed by the expert who'd

examined Colón at defense counsel's request and assessed his

intellectual disability; the district court agreed to do so. That

matter squared away, counsel next argued that because the PSR's

drug-use section described Colón's historically heavier use of

substances, the PSR impermissibly suggested that, during his

release period, Colón had been using more than just the marijuana

to which he'd twice tested positive. The court signaled in

response that it would consider these points in sentencing.

- 6 - Moving to her argument proper, Colón's counsel offered

the following in support of the recommended low-end 46-month

sentence.

Stating what those in the sentencing world should take

as a given, counsel set the stage by pointing out that the

sentencing court must "make[] an individualized assessment . . .

of Colón" when pronouncing sentence. To that end, counsel urged

Colón's offense was not a violent one -- it was possession only,

and his offense could be explained by Colón's intellectual

disability, which was a big part of why, counsel explained, "the

cards have always been stacked against" Colón. That disability

rendered Colón -- who has an IQ equivalent to a third-grade

education, is especially susceptible to peer pressure, and cannot

read or write -- unable to appreciate the amount of ammunition

loaded into the magazines, and his disability also prompted his

comment that he likes guns. Drawing on all of this and more,

counsel beseeched the court to balance this information against

the need to deter and promote respect for the law when crafting an

individualized sentence of imprisonment for his non-violent crime.

The government, on the other hand, sought a 57-month

term of imprisonment plus a term of supervised release. In

support, the government submitted that Colón "needs to take

individual responsibility for his actions," part of which would be

an acknowledgment that the rifle he possessed while on release

- 7 - wasn't just any gun, it was a "ghost gun" (so called because guns

of that variety have no identifying information, such as a serial

number) loaded with 30 rounds of ammunition, suggesting he "was

ready to use the rifle if he needed it." The government also

pointed to Colón's conduct as "part of a broader [drug-use]

problem" -- the government cited his use of "approximately 25

marijuana cigarettes per day" as well as "daily" use of Xanax,

Percocet, and Klonopin, not to mention his admission to probation

that he sometimes mixed prescription drugs and marijuana with

alcohol use. And, in the government's telling, Colón didn't have

a history of seeking mental health treatment, instead opting to

"channel[]" his anxiety and anger into "destructive" activities.

Citing its review of the 18 U.S.C. § 3553(a) factors,

PSR, sentencing memoranda, and a document the court construed as

Colón's allocution, the court turned to its own take on sentencing.

The court listed then-30-year-old Colón's "history of using

marijuana and Percocet and Xanax pills without prescriptions," and

that he "has never received treatment" for his complained-of

anxiety. The court noted the fact that Colón was found in

possession of a ghost AR loaded with a high-capacity magazine with

30 rounds of ammo, plus another magazine with the same ammo loaded

into it (though, the court noted, Colón was charged and pled guilty

only to possession of 60 rounds of ammo). "[H]e liked rifles,"

the court observed. Concluding the parties' recommended sentences

- 8 - did not reflect the seriousness of this offense, address the need

for deterrence and punishment, acknowledge the import of

protecting the public, or promote respect for the law, the district

court pronounced an upwardly variant 66-month term of

imprisonment, plus a 3-year term of supervised release.

Colón's counsel objected to the above-guidelines

sentence as unreasonable "given the fact history of [Colón]" and

the consideration of his historical drug use as part of the

§ 3553(a) factors assessment (given "there was a difference of his

drug use," past versus more recent).

Immediately on the heels of that part of the hearing

(same lawyers, same judge, same transcript -- no break in the

action) came the final revocation hearing, where Colón's counsel

noted that his Grade B violation advisory guidelines range was 4

to 10 months, then requested a lower end sentence of 4 months'

imprisonment to run concurrently with the just-imposed criminal-

case sentence. For its part, the government requested a high-end

10-month sentence.

The court revoked the 2017 supervised release term and,

citing its review of the guidelines' policy statements on

supervised release, the § 3553(a) factors, and "the seriousness of

[the] violation," and noting Colón "demonstrated a lack of

commitment and respect to the supervision process, as well as a

disregard to the law, by constantly engaging in the illegal use of

- 9 - controlled substances," the court imposed a 10-month sentence to

run consecutive to the new-criminal-case sentence, followed by a

5-year term of supervised release.

Colón's counsel requested reconsideration of "the length

of the sentence" and urged that it should run concurrently with

the new-criminal-case sentence. Counsel said the aggregate 76-

month sentence was quite substantial -- particularly with this

being Colón's first revocation. "Denied," was the court's

response.

This timely consolidated appeal followed.

DISCUSSION

Colón's appeal levels a multifaceted challenge at the

procedural and substantive reasonableness of the sentences imposed

by the district court. Before we dive into any of the arguments

he makes in support of that challenge -- or any of the government's

responses thereto -- we first lay out some preliminary method-of-

review guideposts and the reviewing lens we'll be using to examine

Colón's asseverations.

It is axiomatic that our "review of a criminal

defendant's claims of sentencing error involves a two-step

pavane." United States v. Miranda-Díaz, 942 F.3d 33, 39 (1st Cir.

2019). This two-step framework is well established. Under it,

"we first determine whether the sentence imposed is procedurally

reasonable and then determine whether it is substantively

- 10 - reasonable." United States v. Clogston, 662 F.3d 588, 590 (1st

Cir. 2011). At both steps, preserved claims of error get abuse-

of-discretion review, see United States v. Díaz-Lugo, 963 F.3d

145, 151 (1st Cir. 2020), and, as part of that review, we look at

findings of fact for clear error and scrutinize questions of law

de novo, see United States v. Carrasquillo-Vilches, 33 F.4th 36,

41 (1st Cir. 2022).

Today, we start (and will end, as it turns out) with

Colón's procedural-reasonableness claims. And we need train our

focus on only some of those claims, not all, to reach our outcome.

See, e.g., United States v. Torres-Meléndez, 28 F.4th 339, 340

(1st Cir. 2022) (taking the same approach and nodding to the adage

that "the 'simplest' way to handle a case is often the 'best' way"

(quoting United States v. Cruz-Ramos, 987 F.3d 27, 39 (1st Cir.

2021))).

Specifically, we'll take on Colón's contentions that the

sentencing court committed error: (1) in pronouncing sentence in

the new criminal conduct case when it failed to justify and

adequately explain its upwardly variant sentence, which dovetails

with what Colón says was the court's failure to engage with the

mitigating individual characteristic of Colón's intellectual

disability, which was the primary sentencing argument the defense

advanced; and (2) in erroneously finding during the revocation

- 11 - sentencing that Colón was "constantly engaging in the illegal use

of controlled substances" "through his supervision period."

We take these arguments, and the government's

protestations to them, in turn, applying the just-recapped abuse-

of-discretion framework -- despite the government's argument that

we should don a different reviewing lens. We'll explain briefly

why we reject the government's request.

Pointing, for instance, to what it characterizes as

Colón's counsel's failure to object below with specificity to

things like the sentencing court's balancing of the sentencing

factors or the adequacy of the sentencing rationale, the government

posits that not all of Colón's appellate contentions were preserved

for our abuse-of-discretion review. The government submits that

we should instead deem some arguments waived for failure to map

them onto the resulting (and demanding) plain-error rubric or, at

best, review those arguments for plain error.

"For a defendant '[t]o preserve a claim of procedural

sentencing error for appellate review, [their] objection need not

be framed with exquisite precision.'" United States v. Reyes-

Correa, 81 F.4th 1, 10 (1st Cir. 2023) (alterations in original)

(quoting United States v. Rivera-Berríos, 968 F.3d 130, 134 (1st

Cir. 2020)). "It must, however, 'be sufficiently specific to call

the district court's attention to the asserted error.'" Id.

- 12 - (quoting United States v. Soto-Soto, 855 F.3d 445, 448 n.1 (1st

Cir. 2017)).

Having carefully studied the sentencing transcript in

its totality, we conclude it is contextually clear defense

counsel's objections sufficiently called the district court's

attention to the perceived sentencing problems that now form the

basis of the appellate arguments we're about to tackle. Counsel

urged that the new-criminal-case sentence was unreasonable given

Colón's "fact history" -- looking at things holistically, that

objection clearly is a callback to the comprehensive arguments and

urgings Colón's counsel had infused into the hearing, thus

sufficiently encompassing and preserving the argument that the

district court ignored the mitigating history and characteristics

and didn't adequately explain its "above-guidelines sentence."

And after the revocation sentencing, during which the district

court referred to Colón's "constant[]" use of drugs "through his

supervision period" in pronouncing sentence, counsel's reaction

was to protest the length of that sentence, it running consecutive

to rather than concurrent with the other sentence, the

substantiality of the aggregate sentence, and the fact that Colón

hadn't gotten all the help he really needed during the short time

he'd been on release. And, of course, we also know that, at the

very outset of the hearing, counsel had objected to the PSR's

characterization of Colón's drug use historically versus while on

- 13 - supervised release; counsel argued these same clarifications

several times throughout the hearing.3

This is not a situation where we are faced only with a

record that reflects a general objection to a sentence. Cf. United

States v. Ahrendt, 560 F.3d 69, 76 (1st Cir. 2009) (deeming an

argument on appeal unpreserved because an appellant "never

objected to the particular issues" he raised on appeal -- his

"generic objections [could not] be fairly interpreted as giving

notice to the court" as to those specific issues). Instead, the

thematic protestations and objections here rather bleed together

and certainly operated to make the district court aware of the

defense's claimed errors. See, e.g., Reyes-Correa, 81 F.4th at 10

(finding "[s]ubsumed within" a party's objections "the clearly

implicit charge that the district court's explanation rested on

improper considerations" (quoting United States v. Serrano-

Berríos, 38 F.4th 246, 250 n.1 (1st Cir. 2022))). Requiring more

of defense counsel here would be unwarranted. What actually got

3 We also note that when Colón's counsel objected to the district court's reliance on the PSR's characterization of Colón's history of drug use when announcing the 66-month sentence, the court remarked, "I don't think it's a good idea for you to say that I should not indicate what his past drug use has been," and indicated it might rescind its recommendation that Colón participate in a beneficial drug treatment program if his counsel pursued that argument further. Given the court's response, Colón's counsel cannot be faulted for deciding not to trot out the same just-rejected objection only minutes later at the conclusion of the revocation sentencing.

- 14 - said is well in line with our preservation policy (basically,

putting the district court on notice of the error). See Holguín-

Hernández v. United States, 140 S. Ct. 762, 766 (2020) ("The

question is simply whether the claimed error was 'brought to the

court's attention.'" (quoting Fed. R. Crim. P. 52(b))); Fed. R.

Crim. P. 51(b).

Thus, on this record, abuse-of-discretion review it is.

Now, we turn to the appellate contentions and the precedential

landscape against which they appear in this case. First, the new-

conduct sentence; then, the revocation sentence.

New Criminal Conduct Sentence: The Sentencing Explanation and Mitigating Factors

As we mentioned earlier, we need tackle only some of

Colón's various appellate attacks. Namely, we review Colón's

correlated attacks on the adequacy of the court's explanation for

its upward variance in the new criminal conduct case and its

failure to address the mitigating evidence of Colón's intellectual

disability.4 But we'll lay out the particulars of these arguments

4 We note right off the bat that, "[g]enerally speaking, it is not abundantly clear whether failure to consider mitigating factors goes to the procedural or substantive reasonableness of a sentence." United States v. Santiago-Lozada, 75 F.4th 285, 295 n.11 (1st Cir. 2023). And "[t]he lack of an adequate explanation can be characterized as either a procedural error or a challenge to the substantive reasonableness of the sentence." United States v. Crespo-Rios, 787 F.3d 34, 37 n.3 (1st Cir. 2015). Colón focuses these arguments on procedural error, and we follow suit.

- 15 - after we provide a sampling of the wide world of pertinent

sentencing considerations that animates our coming analysis.

The Primer

When it comes to what a court must do when pronouncing

sentence, our jurisprudence has seen quite the evolution. See

United States v. Flores-González, 86 F.4th 399, 417-25 (1st Cir.

2023) (Thompson, J., joined by Barron, C.J. and Montecalvo J., for

a divided en banc court) (tracking and studying in detail the

history and progression of federal sentencing precedent and

parameters). Specific to the adequacy of a court's explanation

grounding a variance from the guidelines range, here are the

basics.

Federal law requires a sentencer to "state in open court

the reasons for its imposition of the particular sentence." 18

U.S.C. § 3553(c); see also Gall v. United States, 552 U.S. 38, 46,

50-52 (2007). Just what kind of explanation is needed depends on

the context of each individual case, Rita v. United States, 551

U.S. 338, 356 (2007) ("The appropriateness of brevity or length,

conciseness or detail, when to write, what to say, depends upon

circumstances."), but sentencing courts must say enough to show an

appellate court they "considered the parties' arguments and ha[d]

a reasoned basis for exercising [their] own legal decisionmaking

authority," id. When a court imposes a sentence above the

guidelines sentencing range, "it must justify the upward

- 16 - variance." United States v. Del Valle-Rodríguez, 761 F.3d 171,

176 (1st Cir. 2014); see also Rita, 551 U.S. at 357 (directing

that when sentences fall outside the guidelines, sentencing judges

must "explain why" they decided not to follow the commission's

recommendations). "[T]he greater a deviation from the [guidelines

sentencing range], the more compelling the sentencing court's

justification must be." Del Valle-Rodríguez, 761 F.3d at 177.

Of overarching importance in sentencing is that a

sentencing court must always conduct an "individualized

assessment" of the § 3553(a) factors -- which include mitigating

characteristics of the offender -- based on the facts presented in

a particular sentencing case. Gall, 552 U.S. at 50 (reasoning

that any justification for a variance must be "sufficiently

compelling to support the degree of the variance," and in all

sentencing matters a judge is required to provide "adequate[]"

explanations "to allow for meaningful appellate review and to

promote the perception of fair sentencing"); see also United States

v. Booker, 543 U.S. 220, 261 (2005) (explaining that discussion of

"[t]hose factors in turn will guide appellate courts . . . in

determining whether a sentence is unreasonable"). How to weigh

the § 3553(a) factors falls inside a sentencing court's "informed

- 17 - discretion." United States v. García-Pérez, 9 F.4th 48, 52 (1st

Cir. 2021).

We do not require sentencing courts to deliver a "rote

incantation" of each factor, and we do not expect them to apply

equal weighting across factors. See United States v. Dixon, 449

F.3d 194, 205 (1st Cir. 2006). We likewise do not require a

sentencing court to "address every argument that a defendant

advances in support of his preferred sentence." United States v.

Rivera-Morales, 961 F.3d 1, 19 (1st Cir. 2020). When a sentencing

court explicitly notes that it considered all the § 3553(a)

factors, we will take that into consideration. Clogston, 662 F.3d

at 592 (observing that when a district court says it considered

the § 3553(a) factors, "[s]uch a statement 'is entitled to some

weight'" (quoting United States v. Dávila-González, 595 F.3d 42,

49 (1st Cir. 2010))). And, when it isn't readily apparent in as

many words, we sometimes are able to infer that a sentencing court

weighed relevant factors in explaining its pronouncement. United

States v. Flores-Nater, 62 F.4th 652, 656 (1st Cir. 2023) ("[W]e

have not mandated that a sentencing court follow any particular

format in explaining an upwardly variant sentence. It is enough

if the explanation can be gleaned 'by fair inference' from the

sentencing record." (citation and internal quotation marks

omitted)); see also United States v. Montero-Montero, 817 F.3d 35,

38 (1st Cir. 2016). We resist arguments that are nothing more

- 18 - than attempts to "substitute [a defendant's] judgment for that of

the sentencing court." United States v. Cahill, 85 F.4th 616, 625

(1st Cir. 2023) (quoting Clogston, 662 F.3d at 593); United States

v. Ruperto-Rivera, 16 F.4th 1, 6 (1st Cir. 2021).

With this legal backdrop in place, we move on.

The Arguments

As we've previewed, Colón's attack on the reasonableness

of the court's pronounced sentence for his new conduct goes like

this: The court erred by failing to consider or address the

mitigating impact of his intellectual disability and, quite

relatedly, the court did not provide an adequate explanation for

the upward variance. Colón all along has presented one principal

mitigating characteristic argument -- his intellectual disability

mitigates his culpability for his new criminal conduct (and the

supervised release violations) in that, for example, it made him

susceptible to being pulled into the criminal activities and

conspiracies in which he was embroiled. He points out that,

despite consistently arguing this mitigating characteristic

throughout the sentencing proceedings, the court did not address

it at all in its sentencing decision. While recognizing, as we

have outlined above, that a sentencing court is not required to

address every factor or every argument in making its sentencing

decision, Colón argues that in his case, the court here cannot

have adequately explained its upwardly varying sentence when it

- 19 - failed to even mention his disability or the well documented impact

it has had on his life (remember the self-mutilation).

The government relies generally on the fact that the

sentencing court enjoys wide discretion in its consideration of

the sentencing factors and chalks Colón's argument up to being a

complaint about how mitigating factors were weighed, pointing out

too that the court didn't need to address every argument Colón

made. It submits that, because the district court was obviously

very aware of Colón's disability (the government points, for

instance, to the district court telling the parties it had read

and considered Colón's sentencing memorandum, where his disability

was highlighted in detail), its decision simply reflects that it

considered and rejected the defense argument that the mitigating

factor of Colón's disability warranted a lower sentence. The

government contends the district court's explanation was

sufficient because it focused on the offense conduct and relevant

aggravating factors not included in the guidelines calculation to

support the upward variance (like the loaded rifle -- a ghost gun,

remember).

Our Take

Colón's challenge has merit. As we'll lay out, on this

record, the district court's explanation was problematically thin,

and its failure to consider expressly Colón's intellectual

disability as a mitigating characteristic -- not just one of many

- 20 - mitigating arguments below, but the principally highlighted

argument below -- ultimately compels our conclusion that its

explanation of the upwardly variant sentence was thus inadequate.

As a refresher, the court's sentencing colloquy went

like this. First, the court recited some basic facts about Colón

and his case (his age, offenses, history of drug use, the gun --

more on this in just a moment). Then, it observed that Colón

"requested a sentence of 46 months" while the government sought "a

sentence of 57 months." But it reasoned "that neither sentence

reflects the seriousness of the offense, promotes respect for the

law, protects the public from additional crimes by Mr. Colon, nor

does it address -- do they address the issues of deterrence and

punishment." And then it levied its upwardly variant sentence.

On its face, this boilerplate language is insufficiently

individualized and it is inadequate -- on its own -- to explain

the upwardly variant sentence. See, e.g., Reyes-Correa, 81 F.4th

at 10-11 (collecting some recent examples of similarly inadequate

boilerplate "explanations"). "[I]t simply rehearses -- but,"

emphasis ours, it "does not apply -- certain of the factors that

Congress has instructed courts to consider in imposing sentences."

Id. at 11 (quoting Flores-Nater, 62 F.4th at 656, which in turn is

citing 18 U.S.C. § 3553(a)(2)).

But what else was said? This matters because, as already

mentioned, we readily acknowledge that sometimes a sentence can be

- 21 - deemed adequately explained by drawing "fair inference[s] from the

sentencing record." Id. (quoting Montero-Montero, 817 F.3d at

38). However, "while 'a court's reasoning can often be inferred

by comparing what was argued by the parties or contained in the

pre-sentence report with what the judge did,' such inferences must

be anchored in 'what the judge did.'" United States v.

Carrasquillo-Sánchez, 9 F.4th 56, 62 (1st Cir. 2021) (quoting

United States v. Jiménez-Beltre, 440 F.3d 514, 519 (1st Cir.

2006)); see also García-Pérez, 9 F.4th at 55.

Having acknowledged that it considered the § 3553(a)

factors, PSR, and sentencing memoranda, and after laying out the

facts of Colón's offenses, the court also mentioned: Colón's age,

10th grade education, and employment info; his history of using

marijuana as well as non-prescription Percocet and Xanax; his

history of anxiety but never getting treatment for it; that he was

found with ammunition and a loaded "ghost AR 15-style assault rifle

with no serial number"; and that he told probation that "he liked

rifles."

In addition to the idea that perhaps this list of

considerations could help explain the sentencing rationale, there

is also an argument to be made -- and the government makes it --

that the mention of the loaded ghost gun ("difficult, if not

impossible," the court noted, for law enforcement to trace)

explains the court's variant sentence. As the government tells

- 22 - it, the sentencing court identified these main factors as

justification for the variance, with its rationale hinging on being

very troubled by the loaded ghost gun and extended magazine, not

to mention Colón's comment that he likes guns. In the government's

view, all of this is plenty from which we could infer an adequate

sentencing rationale, particularly when the extent of the variance

is so slight at "only 9 months" of extra imprisonment.

Color us unpersuaded. For one thing, as a general

matter, we disagree with the characterization of this upward

variance as insignificant. See Rosales-Mireles v. United States,

138 S. Ct. 1897, 1907 (2018) (Sotomayor, J.) (reasoning, in another

sentencing context, that "'[t]o a prisoner,' th[e] prospect of

additional 'time behind bars is not some theoretical or

mathematical concept[,]'" and "'any amount of actual jail time' is

significant" (first quoting Barber v. Thomas, 560 U.S. 474, 504

(2010) (Kennedy, J., dissenting); then quoting Glover v. United

States, 531 U.S. 198, 203 (2001))). And as a practical matter, 9

months, which represents, for example, the length of an entire

school year or a full-term pregnancy, would readily be understood

as a significant time period by any reasonable measure.

Moreover, the court's statements do not constitute an

application of the factors or an adequate explanation -- this is

another "mere listing of the facts" that has no "emphasis on any

particular circumstance," and thus it is "impossible to tell" what

- 23 - the court's rationale was for landing on this 9-month upward

variance -- 15% up from the guidelines sentencing range. Cf.

United States v. Muñoz-Fontanez, 61 F.4th 212, 214 (1st Cir. 2023)

(vacating a 20% upward variance there). What we have here, once

again, is the court rehashing some basic identifying information

and the facts that formed the basis of the new-conduct charge that

led to the instant need for sentencing. See Reyes-Correa, 81 F.4th

at 11; id. at 11-12 ("A summary of the events that preceded the

[sentencing] hearing -- without more -- is an impermissible basis

for a large upward variance.").

We need to be able to understand the reasons of the

district court and how it arrived at its sentencing pronouncement:

"When imposing a significant variance, a sentencing court must

make clear which specific facts of the case motivated its decision

and why those facts led to its decision." Muñoz-Fontanez, 61 F.4th

at 215; see also Reyes-Correa, 81 F.4th at 13 ("If the court deemed

the number of revocations, Reyes's behavior, or some other aspect

of the record uniquely unacceptable, it should have so stated.").

We grant that we certainly can conceive of different ways a ghost

gun being in the factual mix (when the gun possession isn't already

encompassed by the guidelines) could affect sentencing. We can

even (speculatively) conceive of specific ways the ghost gun in

this case might've impacted the sentencing court's analysis. But

our point here is that we do not know which reasons -- if any --

- 24 - were actually what the sentencing court had in mind when

pronouncing sentence. The point, indeed, is that the court didn't

say. See Gall, 552 U.S. at 50 (instructing that sentencing courts

must offer "adequate[]" explanations "to allow for meaningful

appellate review and to promote the perception of fair

sentencing").

Now, it is not sufficiently clear to us that the court's

mention of the ghost gun connects the necessary inferential dots

to reveal a strong justification for the variance. But even if

enough "fair inferences" could carry the day here to divine a

ghost-gun-anchored justification that would pass muster,5 see

Flores-Nater, 62 F.4th at 656 (noting that it is sometimes possible

for us to draw inferences from the sentencing record in concluding

that a district court adequately explained a variance), another

problem with the court's sentencing explanation looms: its failure

to mention, let alone engage with, Colón's intellectual disability

as a mitigating characteristic. The conspicuous absence of any

mention of that characteristic smacks of a failure to make an

individualized assessment of Colón. We explain.

Given where we land analytically today, we need not and do 5

not make any per-se judgment as to the impact possession of a ghost gun ought to have on a sentencing calculus. As always when it comes to fashioning a sentence, the role of any given fact -- ghost gun or otherwise -- in any given sentencing record should be carefully assessed individual case by individual case.

- 25 - Some distinctions are helpful as a starting point.

Colón's case is not one in which the district court quite clearly

addressed certain things, but an appellant nonetheless complains

it did not, see, e.g., García-Pérez, 9 F.4th at 52 (rejecting a

defendant's argument that the court failed to consider mitigating

factors of his youth and prior clean record when the court had

expressly mentioned both),6 and (despite the government's

suggestion to the contrary) it is similarly unlike the related

class of cases where a defendant attempts to superimpose his own

preferred weighing of the sentencing factors, see, e.g., Ruperto-

Rivera, 16 F.4th at 6 (rejecting a mitigating-factors challenge

when the appellant's "plaint boil[ed] down to a lament that the

court did not weigh the aggravating and mitigating factors as

counsel would have preferred"). Colón's case is likewise unlike

those where a defendant trains his gaze on a sentencing court's

failure to address one of his arguments -- when our caselaw is

clear that, in fact, it need not "address every argument that a

defendant advances in support of his preferred sentence." Rivera-

Morales, 961 F.3d at 19 (emphasis added).

6 Additional examples for the curious reader: Cahill, 85 F.4th at 625 (rebuffing a defendant's claim of error as to the district court's dismissal of multiple mitigating factors he'd argued when the court "expressly consider[ed] those factors"); and Ruperto-Rivera, 16 F.4th at 6 (finding a court "dealt explicitly with" a rehabilitation mitigation argument and therefore rejecting a defendant's accusation that the court had disregarded that mitigating factor).

- 26 - Colón's case stands apart from these types of appeals

for the simple reason that he isn't complaining about how a bunch

of important mitigating factors were discarded or weighed wrong;

he isn't arguing that some of his arguments were given short shrift

or misunderstood. His position is that the mitigating individual

characteristic and the argument about it were completely ignored.

And on this record, he has a point.

True, the district court here stated that it considered

the § 3553(a) factors. And while we give "some weight" to that

statement, Dávila-González, 595 F.3d at 49 (citing United States

v. Morales-Machuca, 546 F.3d 13, 26 (1st Cir. 2008)), we still

must decide whether the court applied the factors reasonably.

We conclude the court fell short in this regard. This

is because it is nose-to-face plain from the record that the

district court never engaged with Colón's intellectual disability

as a mitigating characteristic. Colón's steadfast theory

throughout the sentencing proceedings was that his intellectual

disability affects sentencing at many levels, including

culpability, deterrence, and recidivism -- counsel all but jumped

up and down to call attention to all of this. Yes, we are mindful

that the court didn't need to address every argument raised, nor

did it need to weigh the § 3553(a) factors in any particular way.

But "[t]he relative weight of each factor will vary with the

idiosyncratic circumstances of each case," Dixon, 449 F.3d at 205,

- 27 - and on this record, given Colón's paramount emphasis on this

individual characteristic as the mitigation argument, it is

reasonable to conclude that the sentencing court should have

engaged with it, see, e.g., Rita, 551 U.S. at 357 (teaching that

when a party "presents nonfrivolous reasons for imposing a

different sentence," sentencing courts should "explain why [the

court is] reject[ing] those arguments" -- "[s]ometimes the

circumstances will call for a brief explanation; sometimes they

will call for a lengthier explanation," but "[w]here the

[sentencing court] imposes a sentence outside the Guidelines, the

[court] will explain why [it] has done so" (emphasis added)). See

also United States v. Robles-Alvarez, 874 F.3d 46, 53 (1st Cir.

2017) (deeming a sentence unreasonable when, "despite the

appellant's repeated attempts" to get the sentencing court to

consider a "potentially forceful [sentencing] argument," the court

"fail[ed] to even mention the [sentencing] issue" and "did not

even provide a cursory explanation for its rejection of his

argument").7

In a footnote, the government tells us Robles-Alvarez is 7

neither here nor there because the facts there were unique since the appellant was sentenced to life in prison while his coconspirators received significantly lesser sentences, 874 F.3d at 52, and "Colón's case does not fit within [this] unique framework." All sentencing cases' facts are unique -- that is precisely the point of our sentencing jurisprudence that requires individualized assessment of each and every defendant to be sentenced. That said, and as Colón points out, we see quite a few pertinent similarities between Robles-Alvarez and the instant

- 28 - As for possible inferences here, we run headlong into

the issue we canvassed above -- the court did not say enough from

which we could fairly infer how it felt about Colón's dominant

mitigation argument. The government argues the district court

"acknowledged" the argument by noting that it had reviewed the

PSR, sentencing memos, and expert report that raised the mitigating

characteristic. But on this record, it is simply a bridge too far

for us to say the district court meaningfully considered, let alone

adequately explained, how Colón's specific individual

circumstances impacted the final sentencing decision. Rita, 551

U.S. at 356 (instructing that sentencing courts must say enough to

show an appellate court they "considered the parties' arguments").

Same goes for how the ghost gun fits into any of this, i.e.,

whether the court's recitation of information about the ghost gun

could suggest the court determined that fact and its attendant

circumstances outweighed the mitigating characteristic of Colón's

disability -- the court did not say, and there is insufficient

record material to permit such an inferential leap.

matter (both defense sentencing memos focused on a mitigating factor to argue for a lower sentence, that argument was a primary focus at the sentencing hearing, and the sentencing court said nothing about the argument when pronouncing sentence). Id. The fact that the substance of the ignored "potentially forceful" argument might differ from case to case does not alter our reasoning today.

- 29 - Here's where all of this leaves us: The district court

abused its discretion as it relates to the sentencing imperatives

of individualized review of the § 3553(a) factors and the adequacy

of the explanation for its upwardly variant sentence.

Revocation Sentence: "[C]onstantly engaging" in drug use "through his supervision period"

Our remaining task is to examine Colón's contention that

the district court erroneously found during the revocation

sentencing that, "through his supervision period," Colón was

"constantly engaging in the illegal use of controlled substances."

According to Colón, this finding is clearly erroneous -- recall

from many pages ago that the record reflects that Colón tested

negative for cannabinoids fifteen times during his release,

otherwise testing positive only twice (in December 2019 and June

2020, and for cannabinoids only) in the 14-month testing window.

Colón notes that the PSR certainly (and misleadingly, he says)

delved into his historical and more consistent abuse of harder

drugs, but that prior use in no way reflected Colón's behavior

during his supervised release period. Colón also points out that

at the sentencing hearing the government may have further muddied

the waters by using the present tense to describe his prior drug

use -- stating that he "smokes approximately 25 marijuana

cigarettes per day . . . as well as taking Xanax, Percocet, and

- 30 - Klonopins on a daily basis" and that he "mixes the prescription

drugs and . . . marijuana with . . . alcohol."

The government's rebuttal is that the record supports a

conclusion that the district court was well aware Colón had only

two positive tests, but also knew Colón missed a drug test and

purported synthetic marijuana and rolling paper were found in his

car when he was arrested. The court had before it the PSR and

defense counsel's many arguments about it. So, the government

says, the district court fully appreciated the evidence of Colón's

drug use during his supervised release, and its statement about

"constant[]" use "is best characterized as an inartful slip of the

tongue."

"[S]electing a sentence based on clearly erroneous

facts" is an example of a "significant procedural error," United

States v. Navarro-Santisteban, 83 F.4th 44, 55 (1st Cir. 2023)

(alteration in original) (quoting Gall, 552 U.S. at 51), and such

an error "warrant[s] 'revers[al] unless the government shows the

mistake did not affect the sentence,'" id. (second alteration in

original) (quoting United States v. Colón-Maldonado, 953 F.3d 1,

4 (1st Cir. 2020)). But "[c]lear-error review is demanding: this

standard will be satisfied only if, upon whole-record-review, an

inquiring court forms a strong, unyielding belief that a mistake

has been made." United States v. Rivera-Nazario, 68 F.4th 653,

658 (1st Cir. 2023) (quoting United States v. Nuñez, 852 F.3d 141,

- 31 - 144 (1st Cir. 2017)). "As long as the district court's decision

is based on reasonable inferences drawn from adequately supported

facts, we will not find clear error." Id.

Here, it is very clear a mistake has been made: This

record does not reliably support a finding that Colón was

"constantly engaging in the illegal use of controlled substances"

"through his supervision period." As Colón quite aptly

crystallizes it, the district court "either misunderstood that the

information in the PSR did not apply to Mr. Colón's current

conduct, or it otherwise mistakenly believed the record supported

a finding of 'constant' 'use'" -- "[e]ither way, the court

irreversibly erred." As we'll unpack, he is correct.

To the extent the district court misunderstood that

Colón was using drugs during his supervised release period the

same way he had many years earlier, that was, simply put and on

this record, clear error. The record evidence shows the only time

Colón "constantly"8 used drugs was years earlier (back when he

smoked 25 joints a day and took Xanax, Percocet, and Klonopin

8"Constantly" is defined as "without variation, deviation, or change" and "with regular occurrence." Constantly, Merriam- Webster Online Dictionary (Jan. 5, 2024) http://www.merriam-webster.com/dictionary/constantly [https://perma.cc/T6XX-METW]; see also Constantly, Oxford English Dictionary Online (Jan. 5, 2024) https://www.oed.com/dictionary/constantly_adv?tab=meaning_and_us e&tl=true#8389233 [https://perma.cc/E7NX-T3LM] (defining "constantly" as "[i]nvariably, uniformly, regularly, in every case, always"; "[c]ontinually, perpetually, incessantly, always").

- 32 - daily, sometimes even mixing prescription drugs with alcohol).

The government does not dispute this; it just insists the district

court was well aware that Colón's past use was just that -- past

-- because the court indicated that it had read Colón's objections

to the PSR and Colón's counsel labored to clarify the PSR's

freewheeling narrative of Colón's drug use. This would be a

reasonable reading of things but for what the court actually said

when imposing the revocation sentence. The court quite clearly

stated (emphases are ours) that Colón's drug use "through his

supervision period" was "constant[]." We cannot reconcile that

characterization with what the record actually reflects, nor are

we willing to chalk it up to "an inartful slip of the tongue" as

the government suggests we should.

To the extent the district court was drawing inferences

to find the drug use during Colón's term of supervised release was

constant, that approach meets the same clear-error fate. A

"constantly" using inference is wholly implausible on this record

because there are no adequately supported facts to permit it.

Instead, what the record clearly reflects is that fifteen of

seventeen tests came back negative, the two positives (for

cannabinoids only, remember) were 6 months apart, Colón had been

engaged in his drug treatment program, and the presumptive pot

found in Colón's car was never even tested. These are not

- 33 - "constantly" using facts, nor do they even approach a set of facts

that would permit such an inference.

And so, either reading of the district court's finding

would yield the same clear-error conclusion for us.

Resisting this conclusion and trying to show us any

mistake in this regard didn't affect Colón's sentence, the

government reasons that the court's reliance on the drug tests

wasn't an instance of the proverbial tail wagging the dog since

the tests were just one of several violations the court relied on

when imposing sentence. True enough, the court had before it

evidence of Colón's other violations. But on this record, we do

not know precisely to what degree the court relied on its erroneous

constant-use fact, whether based on a misunderstanding of the

record or extrapolated from the record, in fashioning the resulting

sentence. See, e.g., Navarro-Santisteban, 83 F.4th at 56

(remanding when it was not possible to "extricate the influence"

of the court's erroneous reliance on tainted hearsay evidence "from

the court's broader sentencing rationale"). We thus cannot

conclude that the procedural error here did not affect the

selection of the imposed sentence.9

9Before we go, a quick word on the Bureau of Prisons' 500- hour drug and alcohol treatment program, which was recommended by the court as part of Colón's sentence. The government suggests the court mentioned these past-drug-use facts so Colón could benefit from the 500-hour program. This doesn't track for the

- 34 - CONCLUSION

We vacate Colón's sentence and remand to the district

court for resentencing consistent with this opinion. In light of

this disposition, we leave untouched and intimate no view on

Colón's other appellate challenges to his sentences. On remand,

the parties may pursue the other issues raised in their briefs we

need not reach today, to the extent those other issues remain

relevant.

The Clerk of the District Court is directed to assign

this case to a different judge on remand for prompt resentencing.

See 28 U.S.C. § 2106; see also United States v. Muniz, 49 F.3d 36,

41 (1st Cir. 1995) (remanding to a different judge where the

original sentence was grounded on unsupported findings of fact);

revocation sentence rationale. For one thing, the court mentioned the 500-hour treatment program much earlier in the sentencing -- for the new conduct, not as part of the revocation sentence rationale. For another, the court could've referred Colón to the 500-hour program without stating he "constantly" used drugs during his supervision period -- or it could have been more clear that it was saying so for the purpose of anchoring the order for the treatment program (though again, this still doesn't square with characterizing Colón's prior use as "constant[]" use "through his supervision period"). What's more, the record bears out that the treatment program may have been ordered because the defense imbued its sentencing arguments with the importance of substance abuse treatment (of note, defense counsel below suggested Colón might not qualify specifically for the 500-hour program because it requires a GED (which Colón does not have); and even then, we note there is no guarantee the Bureau of Prisons will be able to accommodate such a referral). All to say, this point does not move the analytical needle for us.

- 35 - Mawson v. United States, 463 F.2d 29, 31 (1st Cir. 1972) ("It is

difficult for a judge, having once made up his mind, to resentence

a defendant, and both for the judge's sake, and the appearance of

justice, we remand this case to be redrawn."). The district court

will base resentencing on the existing factual record,

supplemented if appropriate by evidence of events that occurred

after the date of the most recent prior sentencing.

- 36 -