United States v. Colon-De Jesus

• Court: Court of Appeals for the First Circuit
• Decided: October 24, 2023
• Docket: 21-1528
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 21-1528

UNITED STATES OF AMERICA,

Appellee,

v.

JOSÉ COLÓN-DE JESÚS,

Defendant, Appellant.

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

[Hon. Aida M. Delgado-Colón, U.S. District Judge]

Before

Kayatta, Lipez, and Gelpí, Circuit Judges.

William H. Burgess, with whom Kirkland & Ellis LLP was on brief, for appellant. David C. Bornstein, 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.

October 24, 2023 GELPÍ, Circuit Judge. Defendant-Appellant José

Colón-De Jesús ("Colón") appeals his twenty-four-month sentence

for violating conditions of supervised release, stemming from a

2015 conviction, claiming that his sentence is both procedurally

and substantively unreasonable. Finding no error, we affirm.

I. Background

We begin with the offense resulting in Colón's term of

supervised release. In July 2013, Colón was riding a horse on a

roadway at a high rate of speed in Loíza, Puerto Rico, when police

officers observed a firearm in the waistband of his pants. After

he fell from his horse, the police officers recovered a Glock

firearm loaded with sixteen rounds of ammunition from the area

where he landed. Officers subsequently learned that the Glock had

been modified into a machinegun.1 Then, during a search incident

to arrest, the police officers discovered two additional

magazines, each containing fifteen rounds of ammunition. A grand

jury indicted Colón for being a prohibited person in possession of

a firearm, in violation of 18 U.S.C. § 922(g)(1),2 and for illegal

1 A "machinegun" is "any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger." 26 U.S.C. § 5845(b). 2 In 2009, Colón was convicted of unlawfully possessing one

round of ammunition under the laws of Puerto Rico. Because said offense was "punishable by imprisonment for a term exceeding one year," Colón was prohibited from "possess[ing] in or affecting commerce, any firearm or ammunition." § 922(g)(1).

- 2 - possession of a machinegun, in violation of § 922(o).3 Colón pled

guilty in January 2014 to the prohibited-person-in-possession

charge and received a sentence of sixty months' imprisonment,

followed by three years of supervised release.4 As a condition of

supervised release, the district court ordered Colón to, among

other things, not commit any new crimes, not possess or use a

controlled substance, and not possess a firearm or ammunition.

In December 2017, Colón completed his prison sentence

and reentered the community on supervised release. During the

summer of 2018, Colón tested positive for cocaine multiple times,

in violation of his conditions. Colón admitted to using cocaine

and began outpatient treatment. Then, in November 2019, Colón was

again arrested on firearms charges.

The events leading to Colón's 2019 arrest are as follows.

While Colón was riding a bicycle in Loíza, police officers observed

a pistol magazine protruding from the front left pocket of his

pants. The officers stopped Colón to determine whether he had a

permit to carry a firearm. After learning that he did not, the

police placed Colón under arrest. The officers seized a Glock

pistol from Colón's person, which they later discovered had been

modified into a machinegun, as well as four high-capacity pistol

3 "Machinegun" has the same meaning in § 922(o) as it does in § 5845(b). § 921(a)(24). 4 Colón appealed his sentence, which was affirmed. See United States v. Colón De Jesús, 831 F.3d 39 (1st Cir. 2016).

- 3 - magazines. The officers also recovered from Colón's backpack an

AK-47 type pistol, five high-capacity rifle magazines, one

high-capacity pistol magazine, one standard pistol magazine, and

eighteen capsules "containing [a] white powdery substance which

field-tested positive for cocaine." In total, officers seized

over three hundred rounds of ammunition from Colón. This new

arrest triggered revocation proceedings in Colón's supervised

release case5 and resulted in an indictment charging Colón with

possession of a machinegun, in violation of § 922(o), and

possession of a firearm and ammunition by a prohibited person, in

violation of § 922(g)(1) (hereinafter "case 19-771").

Prior to Colón's revocation proceedings, Colón reached

an agreement with the government in case 19-771 and pled guilty to

the possession-of-a-machinegun charge. He was then sentenced to

forty-one months' imprisonment, followed by three years of

supervised release. When Colón's revocation proceedings commenced

months later -- in March 2021 -- the magistrate judge flagged that

the revocation motion contained allegations beyond what Colón pled

guilty to in 19-771. Later, at a preliminary revocation hearing,

the government represented that it sought revocation based only on

Colón's alleged possession of guns and ammunition in case

5 The probation officer's motion for revocation alleged that, based on Colón's new arrest, he had violated his conditions of supervised release by committing a new crime and by possessing a controlled substance.

- 4 - 19-771 -- thereby "voluntarily desisting" from seeking revocation

based on Colón's alleged possession of a controlled substance.

Colón subsequently filed a waiver of the preliminary revocation

hearing, which was accepted by the court and resulted in a finding

of probable cause for the supervised release violation

allegations, except those pertaining to controlled substances.

Colón's final revocation hearing took place in May 2021.

At the outset, the judge recited the facts alleged in the probation

officer's revocation motion, including the facts pertaining to the

seizure of capsules believed to be cocaine from Colón's backpack.

The court asked whether Colón was "accepting or contesting the

[supervised release] violations" and his attorney replied, "We are

accepting the violations, Your Honor." Colón's attorney then went

on to explain that Colón pled guilty in case 19-771, and the judge

confirmed that Colón understood that his revocation was based on

his new conviction.

Next came the sentencing portion of the revocation

hearing. Colón's attorney requested a six-month prison sentence,

citing the amount of time that Colón had spent in prison in the

preceding decade, the stiff sentence he received in case 19-771,

the lack of violence in his criminal record, and his issues with

depression and drug dependency, as discussed in the Presentence

Report ("PSR") for case 19-771. The government, in turn, requested

an eighteen-month prison sentence, based on the nature of Colón's

- 5 - supervised release violation -- that he was caught with a

"significant amount of ammunition, a firearm, [and] now a machine

gun" and "did not learn from his first [firearms] conviction."

The government explained that the following mitigating evidence

also factored into its sentencing recommendation: that Colón

immediately admitted possession of the firearms and ammunition,

pled guilty, and was remorseful for his conduct.

After the district court found that Colón violated the

conditions of his supervised release, it explained that, in

imposing the sentence, it was considering the "advisory sentencing

guidelines," "chapter seven policy statements regarding revocation

of supervised release," section 3553(a) factors, "the nature and

circumstances of the violations," and "the fact that Mr. Colón of

course engaged in new criminal conduct." Based on Colón's

"Criminal History Category of III" and commission of a "grade A

violation," the applicable sentencing range was eighteen to

twenty-four months' imprisonment for the supervised release

violation.6 Further, the court noted that twenty-four months'

imprisonment was the statutory maximum sentence permitted per

§ 3583(e).

The Sentencing Commission has issued policy statements, as 6

opposed to guidelines, for supervised release violations. U.S.S.G. § 7A1. Colón does not contest the district court's calculation of his sentencing range under the applicable policy statement.

- 6 - After establishing the sentencing parameters, the

district court explained its revocation sentence. First, the court

recited Colón's criminal history. In doing so, the court noted

"that in 2009, [Colón] got a conviction for drugs, and still he's

dealing in cocaine. And cocaine was seized from him as well."

The court went on to recite his other criminal convictions

chronologically -- all of which involved the possession of guns or

ammunition -- and highlighted the fact that the newest case

involved "a machine gun, a larger number of ammunitions, and a

larger number of magazines." The court stressed that Colón engaged

in "increased criminal activity" or "increased seriousness in the

type of criminal activity." Second, the court emphasized that

Colón engaged in the conduct at issue while on supervised release,

demonstrating "blatant disregard for the instructions of the

probation officer" and "his conditions of supervised release."

The court further remarked that Colón's conduct "certainly denotes

that he hasn't learned from previous incarceration and

experiences." Third, the court explained that Colón "had

[previously] been given the chance to rehabilitate and adjust" and

"disregarded the opportunities so given to him," citing his prior

supervised release violations for positive drug tests. The court

acknowledged the mitigation evidence presented by Colón's

attorney, specifically that Colón had never been charged with

violent offenses. Nevertheless, the court balanced said evidence

- 7 - against the potential for harm associated with the possession of

a machinegun, explaining that the potential for harm factored into

the court's consideration of the seriousness of the offense. The

district court sentenced Colón to twenty-four-months' imprisonment

based on "the seriousness of [his] repeated conduct," and the

hearing concluded without objection from Colón's attorney. This

appeal followed.7

II. Discussion

On appeal, Colón raises both procedural and substantive

challenges to the reasonableness of his sentence for violating his

supervised release conditions. We first tackle his procedural

claims of error. See Gall v. United States, 552 U.S. 38, 51 (2007)

(explaining that procedural challenges should be addressed before

turning to substantive concerns); Ayala-Lugo, 996 F.3d at 55

(same).

A. Procedural Reasonableness Claims

The Supreme Court has defined "significant procedural

error[s]" to include "failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting a

7 Colón's notice of appeal was untimely as originally filed; however, the district court granted his motion to extend the deadline to appeal, thus rendering his notice of appeal timely. See United States v. Ayala-Lugo, 996 F.3d 51, 57 n.2 (1st Cir. 2021).

- 8 - sentence based on clearly erroneous facts, or failing to adequately

explain the chosen sentence -- including an explanation for any

deviation from the Guidelines range." Gall, 552 U.S. at 51. Here,

Colón contends that the district court committed procedural error

at sentencing by relying on the unsubstantiated allegation that

"cocaine was seized from [Colón]" and by making the erroneous

finding that Colón was "dealing in cocaine." While we normally

review alleged procedural errors under an abuse-of-discretion

standard, id., having raised no objection below, Colón concedes

that our review of his procedural claims is for plain error, see

United States v. Millan-Isaac, 749 F.3d 57, 66 (1st Cir. 2014).

"To survive plain-error review and merit resentencing,

a defendant must make four showings: (1) an error occurred,

(2) that was clear or obvious, (3) that affected his substantial

rights, and (4) that seriously impaired the fairness, integrity,

or public reputation of judicial proceedings." Id. (citing United

States v. Olano, 507 U.S. 725, 732-37 (1993)). We begin with

Colón's "seizure" claim.

1. District Court's "Seizure" Statement

Colón contends that the district court's finding -- that

"cocaine was seized from him" -- constitutes obvious error because

it came from an unsubstantiated report, thus violating our holding

in United States v. Marrero-Pérez that "no weight should be given

in sentencing to arrests not buttressed by convictions or

- 9 - independent proof of conduct." 914 F.3d 20, 22 (1st Cir. 2019).

The facts before us now, however, are quite distinguishable from

those presented in Marrero-Pérez. There, the district court relied

upon several arrest allegations in a PSR -- all of which lacked

detail or were unaccompanied by a conviction -- in imposing an

upwardly variant sentence. Id. at 22-23. We concluded that it

was error for a sentencing judge to equate a bare arrest allegation

with guilt, absent "some greater indicia of reliability that the

conduct underlying the arrest took place." Id. at 23-24.

Here, unlike Marrero-Pérez, there is no claim that the

district court "equate[d] arrest with guilt." Id. at 23. First,

the district court referenced Colón's conduct at sentencing, not

an arrest. See United States v. Mercer, 834 F.3d 39, 49-50 (1st

Cir. 2016) (distinguishing between a district court relying on

dismissed charges and "relying on certain conduct that took place

in connection with the dismissed charges"). Second, Colón does

not argue that, in stating "cocaine was seized from him," the

district court improperly inflated his sentence because it

considered him guilty of the crime of drug possession for

sentencing purposes.

Rather, we understand Colón to be arguing more broadly

that it was error for the district court to rely, at sentencing,

on the allegation that Colón possessed cocaine at the time of his

2019 arrest because said allegation was unsubstantiated, meaning

- 10 - that the court lacked "indicia of reliability that the

conduct . . . took place." Marrero-Pérez, 914 F.3d at 24. In

support of this argument, Colón points out that the only details

pertaining to his arrest with cocaine came from the probation

officer's recitation of the facts, in the motion to revoke

supervised release in the present case and the PSR for case 19-771.8

It is well established in our circuit that "factual

findings made at sentencing must be supported by a preponderance

of the evidence." United States v. Rivera-Ruiz, 43 F.4th 172, 181

(1st Cir. 2022) (quoting United States v. Castillo-Torres, 8 F.4th

68, 71 (1st Cir. 2021)). Meaning that, to avoid error, "a sentence

must be based on 'information [that] has sufficient indicia of

reliability to support its probable accuracy.'" Id. (quoting

United States v. Morgan, 384 F.3d 1, 5 (1st Cir. 2004)); U.S.S.G.

§ 6A1.3(a). A court's finding is erroneous if it is "based solely

on unreliable evidence." Castillo-Torres, 8 F.4th at 71.

Turning to the case at hand, we discern no error in the

district court's reliance on the PSR in case 19-771 for its finding

that "cocaine was seized from [Colón]." We have previously

explained that a district court does not err by relying on

It is undisputed by the parties that Colón did not plead 8

guilty to any drug-related offense in case 19-771 and that, when offered the opportunity to substantiate the drug allegations at a probable cause hearing for the supervised release violations, the government declined to do so.

- 11 - unobjected-to portions of a PSR at sentencing because, "generally,

a PSR bears sufficient indicia of reliability." United States v.

Díaz-Rivera, 957 F.3d 20, 27 (1st Cir. 2020) (quoting United States

v. Rondón-García, 886 F.3d 14, 25 (1st Cir. 2018)); see also United

States v. Portell-Márquez, 59 F.4th 533, 537-38 (1st Cir. 2023)

("We have found such indicia of reliability to be present where

the defendant . . . did not object to a [PSR] setting forth the

conduct [underlying the arrest]."); Rivera-Ruiz, 43 F.4th at 184

(concluding that the district court did not err in relying on an

administrative complaint at sentencing where the allegations

underlying the complaint were sufficiently detailed in the

unobjected-to PSR and thus "supported a finding that the underlying

conduct more likely than not occurred"); United States v.

Miranda-Díaz, 942 F.3d 33, 40 (1st Cir. 2019) ("Where conduct

surrounding a dismissed charge is 'set forth in undisputed portions

of the [PSR],' the district court is 'entitled to rely on that

conduct when sentencing' the defendant." (quoting Mercer, 834 F.3d

at 50)).

Here, Colón did not object to the district court's

consideration of the PSR for case 19-771 during sentencing on his

supervised release violation. In fact, Colón referenced the PSR

multiple times in support of his own argument for a more lenient

sentence. Nor did Colón object to the factual allegations

contained within said PSR. The PSR, in its discussion of "The

- 12 - Offense Conduct" underlying case 19-771, stated that law

enforcement seized the bag that Colón was carrying when he was

arrested and that the bag contained, among other things,

"[e]ighteen (18) capsules containing [a] white powdery substance

which field-tested positive for cocaine." Colón's failure to

object to the PSR alone rendered it sufficiently reliable to anchor

the district court's finding that "cocaine was seized from him"

under our existing precedent. See United States v. Cruz-Olavarria,

919 F.3d 661, 665-66 (1st Cir. 2019) (explaining that it was proper

for the district court to consider dropped drug charges at

sentencing for a supervised release violation because "the

unchallenged facts surrounding [the defendant's] arrest [were]

contained in the [PSR]"); Mercer, 834 F.3d at 50 (concluding that

the district court did not err at sentencing in relying on "conduct

that took place in connection with [defendant's] dismissed

charges . . . [b]ecause that conduct was set forth in undisputed

portions of the PSR").

Here, however, other "indicia of reliability" support

the district court's finding that Colón possessed cocaine when he

was arrested in 2019. For example, Colón admitted to using cocaine

in August 2018, in violation of his supervised release conditions,

after testing positive for the substance multiple times.

Additionally, Colón admitted to continued drug use during his

sentencing argument for the supervised release violation,

- 13 - specifically referring the district court to the PSR's substance

abuse section, which discussed his cocaine use. These admissions,

coupled with the unobjected-to facts in the PSR, make it more

likely than not that "cocaine was seized from [Colón]" when he was

arrested in 2019. See United States v. Rodríguez-Reyes, 925 F.3d

558, 565 (1st Cir. 2019) (concluding that evidence supported the

district court's finding that the defendant engaged in conduct

underlying his drug possession charges where defendant admitted to

drug use in his sentencing memorandum, tested positive for

marijuana, and did not object to the PSR's discussion of his drug

use). Thus, we find no error in the district court's "seizure"

statement.9

2. District Court's "Dealing" Statement

Next, Colón claims that the district court procedurally

erred in finding that "still [Colón is] dealing in cocaine" because

no factual support exists in the record for the assertion. Colón's

argument presumes that, when the district court said, "dealing

in," it meant "selling." In support of his interpretation, Colón

cites Merriam-Webster's first definition of "deal in," meaning "to

buy and sell (something) as a business," along with numerous

examples where courts, including our own, have used the term

9 Given that Colón's revocation proceedings were intrinsically

intertwined with case 19-771, he cannot reasonably claim surprise that his PSR was later used as it was.

- 14 - "dealing in" to mean "selling" in the context of drugs. Deal in,

Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictiona

ry/deal%20in (last visited Oct. 18, 2023). Per Colón, the only drug-related

evidence in the record was that he personally used cocaine, thus the

district court's finding about "dealing" was erroneous.

The government, also citing case law and a

Merriam-Webster definition, responds that "dealing in" can mean

"to use or be involved in (something)." Id. (referencing second

definition of "deal in"). Countering Colón's criticism that said

definition only applies to "concepts or intangibles," the

government points us to the historical usage of "deal," which the

government argues means to "use or consume" in the cited example

referring to malt liquor. Deal, Definition II.15, Oxford English

Dictionary Online, https://www.oed.com/dictionary/deal_v?tab=mea

ning_and_use-paywall#7525250 (last visited Oct. 18, 2023) ("All

malt liquors fatten, or at least bloat; and I hope you do not deal

much in them." (citation omitted)). According to the government,

the district court did not err in finding that "still [Colón is]

dealing in cocaine" because, as discussed supra, sufficient

evidence was presented at sentencing that he continued "to use" or

"be involved" with cocaine.

Recall, as outlined above, that we review Colón's

procedural challenges for plain error only and that, to prevail,

he must show, among other things, that a "clear or obvious" error

- 15 - occurred. Millan-Isaac, 749 F.3d at 66 (citing Olano, 507 U.S. at

732-37). For reasons discussed infra, we conclude that Colón has

not met his burden.

Whether the district court's finding -- that Colón was

"dealing in cocaine" -- was erroneous depends on the district

court's intended meaning of "dealing." While we agree with Colón

that "dealing" often means "selling" in the context of drugs, the

government has proffered another plausible interpretation of the

term used here. The government's "to use" or "be involved" with

interpretation of "dealing" finds support in the cited dictionary

definitions but also in the record when viewed as a whole. Here,

the only reference to drugs at sentencing involved Colón's

possession or personal use of substances -- there was no evidence

of drug sales -- thus making it plausible that the district court

meant "use" or "involvement" when it said "dealing."10 Further,

the district court referenced Colón's 2009 drug conviction

immediately prior to its statement that "still he's dealing in

cocaine." The use of "still" here suggests that the district court

was referring to this past conduct, which involved possession of

Colón argues that it is precisely the lack of evidence of 10

drug sales that renders the district court's "dealing" finding erroneous. Said argument would be more compelling if there was no evidence in the record whatsoever pertaining to drugs. Where, as here, there is such evidence, we must consider whether the government's interpretation of the district court's "dealing" statement can be rationally reconciled with the record.

- 16 - an illegal substance, to indicate that Colón continued to engage

in the same conduct, despite his prior conviction.11 Viewed in

context, we cannot conclude that the government's suggested

interpretation is irrational.

Having been presented with two plausible interpretations

of "dealing," we find the district court's use of the term

ambiguous. Given this ambiguity, we cannot find that the alleged

error, if one occurred at all, was "clear or obvious." See United

States v. Walker-Couvertier, 860 F.3d 1, 13 (1st Cir. 2017)

(declining to give the "most pernicious meaning" to ambiguous

language on appeal in concluding no plain error, particularly

"where the defendant[] did not contemporaneously object"

(alteration in original) (quoting United States v. Sepulveda, 15

F.3d 1161, 1188 (1st Cir. 1993))); United States v. Pacheco, 434

F.3d 106, 115 (1st Cir. 2006) (holding that no plain error occurred

where ambiguity "shroud[ed] the district court's statements"

pertaining to a directed verdict); United States v. Munson, 819

F.2d 337, 344 (1st Cir. 1987) (concluding that the defendant failed

to establish plain error on appeal where the statements at issue

were "subject to various interpretations"). Having failed to

11There is some factual dispute about whether Colón's 2009 conviction involved cocaine or marijuana. We note that, at sentencing, Colón's counsel represented that the 2009 conviction was for cocaine. Nevertheless, the salient point here, which is undisputed, is that the prior conviction was for possession of a substance, not for selling it.

- 17 - object before the district court, which could have clarified what

it meant by "dealing in," Colón "cannot now use the ambiguity as

a basis for assigning error." Munson, 819 F.2d at 344. As such,

we discern no plain error in the district court's "dealing"

statement.12 Having resolved Colón's procedural claims of error,

we turn next to his substantive challenges. See Gall, 552 U.S. at

51; Ayala-Lugo, 996 F.3d at 55.

B. Substantive Reasonableness Claims

We note at the outset that Colón did not object to the

substantive reasonableness of his sentence below. Citing

Holguin-Hernandez v. United States, he asserts that, because he

argued for a shorter sentence than the one imposed, his challenges

to the substantive reasonableness of his sentence are preserved

12 Even if we were to assume for argument's sake that the district court's "dealing" statement amounted to "clear or obvious error," Colón fails to persuade us that said hypothetical error "affected his substantial rights." Millan-Isaac, 749 F.3d at 66 (citation omitted). To meet this burden, Colón must show that "there is 'a reasonable probability that, but for the error, the district court would have imposed a different, more favorable sentence.'" United States v. Rodríguez–Meléndez, 828 F.3d 35, 39 (1st Cir. 2016) (quoting United States v. González–Castillo, 562 F.3d 80, 83 (1st Cir. 2009)). While he is correct that the erroneous finding need only be a "salient" factor in the district court's sentencing analysis, see id., his claim still falls short. It is evident from the record that the district court's top-of-the-Guidelines sentence was driven by the court's concern over Colón's repeated unlawful possession of weapons, which increased in severity (in terms of the type of firearm possessed, as well as the amount of ammunition), posed a great danger, and demonstrated Colón's lack of remorse. Thus, even assuming favorably to Colón that the district court's "dealing" statement was made in error, his challenge still misses the mark.

- 18 - and that our review is for abuse of discretion. 140 S. Ct. 762,

766 (2020). The government concurs with Colón but only insofar as

he raises a general claim that his sentence is unreasonably long.

Colón's claims on appeal go further, however, as he argues that

the district court erred by failing to provide a case-specific

rationale for its sentencing decision and by placing undue weight

on the seriousness of the offense. The government contends that

these specific claims are unpreserved and should be reviewed only

for plain error, which Colón waived when he failed to argue the

plain error standard in his opening brief.

We agree with the government for the reasons that we

proceed to explain. In Ayala-Lugo, we held that "a general

objection to the [procedural and substantive] reasonableness of

[a] sentence . . . is not sufficient to give the district court

notice of the specific issue raised on appeal." 996 F.3d at 56-57

(internal quotations omitted) (applying plain error review to

unpreserved procedural and substantive claims); see also United

States v. Carrasquillo-Sánchez, 9 F.4th 56, 58 (1st Cir. 2021)

(concluding that an objection "to the length of the sentence

imposed" preserved only a claim that the sentence was substantively

unreasonable "due to its length and independent of the adequacy of

the explanation offered by the District Court in support of it").

Moreover, we have found challenges to the adequacy of a court's

sentencing explanation, when framed as a procedural error,

- 19 - preserved only where the defendant raised specific objections

before the district court.13 See United States v. Rivera-Berríos,

968 F.3d 130, 134 (1st Cir. 2020) (finding procedural claim of

error pertaining to the adequacy of the court's sentencing

explanation preserved where defendant's "counsel made clear that

he believed that . . . the court had not articulated any

cognizable grounds that would support an upward variance"); United

States v. García-Pérez, 9 F.4th 48, 52-53 (1st Cir. 2021)

(concluding that a procedural claim was preserved where the

defendant argued, before the district court, "'that the Court gave

little weight to mitigating factors' and 'that the Court gave

excessive weight to aggravating factors'"). Absent specific

objections made to the district court, we review for plain error.

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

(applying plain error review to an unpreserved procedural

challenge to the adequacy of the district court's sentencing

explanation). Here, Colón did not raise before the district court

any of the specific, substantive challenges that he now argues on

appeal, thus they are unpreserved and plain error review applies.

Ayala-Lugo, 996 F.3d at 56-57. And, because he failed to argue

13United States v. García-Pérez, 9 F.4th 48, 52 n.1 (1st Cir. 2021) ("Under our precedents, [an inadequate explanation] argument 'can be characterized as either a [claim of] procedural error or a challenge to the substantive reasonableness of the sentence.'" (second alteration in original) (quoting United States v. Crespo-Ríos, 787 F.3d 34, 37 n.3 (1st Cir. 2015))).

- 20 - the plain error standard in his opening brief, his specific

challenges to the substantive reasonableness of his sentence are

waived.14 See United States v. Espinoza-Roque, 26 F.4th 32, 36

(1st Cir. 2022) ("[Defendant] waived [the] claim on appeal by

failing to address the governing standard of plain error review in

his opening brief.").

Nevertheless, Colón, by arguing for a more lenient

sentence than the one that the district court imposed, adequately

preserved his claim that his sentence was unreasonably long. See

Holguin-Hernandez, 140 S. Ct. at 766. We review preserved

challenges to the substantive reasonableness of a sentence for

abuse of discretion. United States v. Vargas-Martinez, 15 F.4th

91, 102 (1st Cir. 2021). "When evaluating [said challenges], 'the

key inquiry is whether the sentencing court has articulated a

plausible rationale and reached a defensible result.'" United

States v. De Jesús-Torres, 64 F.4th 33, 40 (1st Cir. 2023) (quoting

United States v. Coombs, 857 F.3d 439, 452 (1st Cir. 2017)). We

remain mindful that "[t]here is no one reasonable sentence in any

given case but, rather, a universe of reasonable sentencing

outcomes." United States v. Clogston, 662 F.3d 588, 592 (1st Cir.

14 We note that, even after the government asserted in its opening brief that plain error review applied to Colón's specific substantive claims, Colón made no effort in his reply brief to argue plain error. Instead, Colón simply maintained that his claims were adequately preserved.

- 21 - 2011) (citation omitted). With these principles in mind, we turn

to the case at hand.

Here, the sentence imposed by the district

court -- twenty-four months' imprisonment -- fell within the range

provided by the Sentencing Commission's applicable policy

statement, which was eighteen to twenty-four months. U.S.S.G

§ 7B1.4(a). Given that Colón's sentence falls "within [the]

properly calculated guideline range, challenging its substantive

reasonableness involves a 'heavy lift.'" De Jesús-Torres, 64

F.4th at 41 (citation omitted). To meet this burden, Colón "must

adduce fairly powerful mitigating reasons and persuade us that the

district court was unreasonable in balancing pros and cons."

Clogston, 662 F.3d at 593 (quoting United States v. Madera–Ortiz,

637 F.3d 26, 30 (1st Cir. 2011)). His arguments fail to convince

us.

First, unlike the circumstances in United States v.

Franquiz-Ortiz, 607 F.3d 280 (1st Cir. 2010), cited by Colón, the

district court here explained the basis for its sentencing

decision. In addition to hearing from the parties, the district

court considered the § 3553(a) factors, "the nature and

circumstances of the violations," and Colón's specific

conduct -- "being in possession of . . . 352 rounds of ammunition,

the Glock pistol, which is the machine gun and basis for the

conviction in the [new] case, an AK-47 pistol, and [eleven]

- 22 - magazines of which four were high capacity." In support of its

sentence, the district court recited Colón's criminal history and

pointed to the fact that his supervised release violation

represented "increased criminal activity, or increased seriousness

in the type of criminal activity," given that he possessed a

machinegun (unlike his prior conviction for possessing a firearm)

and a larger number of magazines and ammunition. The district

court also explained that the fact that Colón engaged in this

conduct while on supervised release demonstrated "blatant

disregard for the instructions of the probation officer, his

conditions of supervised release, and certainly denote[d] that he

hasn't learned from previous incarceration and experiences." The

court credited Colón's lack of a violent record but stated that it

did not erase the potential for harm associated with the possession

of a machine gun, which factored into the seriousness of the

offense.15 Also weighted into the decision was the fact that Colón

"had been given the chance to rehabilitate and adjust" -- a

reference to his prior violations for positive drug tests -- but

that "he disregarded the opportunities so given to him." The court

imposed the maximum sentence in light of "the seriousness of the

While Colón takes issue with the district court's treatment 15

of evidence "weighing against a statutory-maximum sentence," we have previously made clear that the fact "[t]hat the sentencing court chose not to attach to certain of the mitigating factors the significance that the appellant thinks they deserved does not make the sentence unreasonable." Clogston, 662 F.3d at 593.

- 23 - repeated conduct" of Colón. We find nothing implausible about the

district court's sentencing rationale.

Further, the maximum sentence imposed here represents a

defensible result. To the extent that Colón argues that he should

have received a lighter revocation sentence because he was already

punished for his conduct in case 19-771, we find his argument

unavailing. Our case law establishes "that when a supervised

releasee 'transgresses the criminal law as well as the conditions

of supervision, there is no legal impediment in sentencing [him]

both as a criminal and as a supervised release violator.'" United

States v. Tanco-Pizarro, 892 F.3d 472, 483 (1st Cir. 2018) (quoting

Coombs, 857 F.3d at 451). Here, Colón, who was on supervised

release following a conviction for being a prohibited person in

possession of a firearm, was found, yet again, in possession of

firearms, one of which was a machinegun, as well as in possession

of over three hundred rounds of ammunition and multiple magazines.

And this came after Colón had already violated his supervised

release by testing positive for cocaine on at least three occasions

and was referred to treatment instead of being revoked. Given

these circumstances, the imposition of the maximum sentence

allowed was a defensible result.

Finding no abuse of discretion in the length of Colón's

sentence and his other specific challenges waived, we conclude

that Colón's sentence was substantively reasonable.

- 24 - III. Conclusion

Having resolved Colón's procedural and substantive

challenges, his revocation sentence is affirmed.

- 25 -