United States Court of Appeals For the First Circuit
No. 21-1956
UNITED STATES OF AMERICA,
Appellee,
v.
ALLAN GIOVANNY CORDERO-VELÁZQUEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Barron, Chief Judge, Thompson and Montecalvo, Circuit Judges.
Maria Soledad Ramirez-Becerra, with whom Maria Soledad Ramirez-Becerra Law Office was on brief, for appellant.
Katherine Twomey Allen, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Gregory B. Conner, Assistant United States Attorney, were on brief, for appellee.
December 23, 2024 MONTECALVO, Circuit Judge. Allan Giovanny
Cordero-Velázquez was convicted of unlawful possession of a
machine gun in violation of 18 U.S.C. §§ 922(o) and 924(a)(2)
following the entry of a straight guilty plea. Cordero-Velázquez
now appeals his sentence of forty-eight months' imprisonment,
followed by three years of supervised release. On appeal,
Cordero-Velázquez argues that his sentence was both procedurally
and substantively unreasonable. For the reasons that follow, we
disagree and affirm the sentence imposed by the district court.
I. Background1
A. Cordero-Velázquez's Arrest
On March 13, 2021, Cordero-Velázquez was in the
passenger seat of a car driven by his friend, Tommy Louis
Casillas-Negrón, heading in the direction of Casillas-Negrón's
home. Around midnight, a Carolina Municipal Police officer in a
marked police car conducted a traffic stop of Casillas-Negrón's
car because the windows were "noticeably dark." The officer
informed Casillas-Negrón that he was being pulled over because of
the tinted windows and measured the window tint using a photometer.
The windows were found to be too darkly tinted, in violation of
1 Because "this appeal follows a guilty plea, our recitation of the facts is derived from '. . . the undisputed sections of the presentence investigation report[] and the transcripts of the change-of-plea and sentencing hearings.'" United States v. Calderon-Zayas, 102 F.4th 28, 32 (1st Cir. 2024) (quoting United States v. Spinks, 63 F.4th 95, 97 (1st Cir. 2023)).
- 2 - Puerto Rico law, and the officer asked Casillas-Negrón for his
license and registration.
Casillas-Negrón then reached for a fanny pack located
near his right leg; the fanny pack was also within reaching
distance of Cordero-Velázquez. Casillas-Negrón opened the fanny
pack and retrieved his driver's license to give to the officer.
In the process, the officer saw a firearm in the fanny pack. When
the officer asked Casillas-Negrón if he had a firearm permit,
Casillas-Negrón responded that he did not.
The officer, with the aid of back-up officers, then
arrested Casillas-Negrón and Cordero-Velázquez. The Carolina
Municipal Police ultimately recovered a Glock pistol loaded with
a .40mm caliber round of ammunition in the chamber and eleven .40mm
caliber rounds of ammunition in the magazine. The Glock pistol
was modified with a chip so that it would operate fully
automatically. They also recovered an additional twenty-two round
capacity magazine loaded with another twenty .40mm caliber rounds
of ammunition.
Casillas-Negrón and Cordero-Velázquez were read their
Miranda rights and waived those rights. They each admitted to
owning the firearm and to having knowledge that the firearm was
modified to function as a fully automatic weapon.
Cordero-Velázquez specifically admitted to previously using the
- 3 - firearm; the last time he remembered doing so was on the prior New
Year's Eve.
Cordero-Velázquez was later charged with a one-count
indictment for illegal possession of a machine gun in violation of
18 U.S.C. §§ 922(o) and 924(a)(2).
B. Violations of Supervised Release
After his arrest, on March 19, 2021, Cordero-Velázquez
was released under the supervision of the U.S. Probation Office
("probation"). While on pretrial release, Cordero-Velázquez
tested positive for marijuana and later admitted to smoking
marijuana several times. Cordero-Velázquez explained to probation
that he was utilizing marijuana to deal with the deaths of several
family members in a short period of time. Probation then enrolled
Cordero-Velázquez in an intensive phase of a drug testing program
and also referred him to mental health treatment.
Late in August 2021, Cordero-Velázquez again tested
positive for marijuana and admitted to consuming the same; he also
failed to call the random drug testing program on six different
occasions in August and September 2021. At that time, probation
requested the issuance of a summons for a show-cause hearing. The
court took no action as to these later violations prior to
Cordero-Velázquez's sentencing hearing.
- 4 - C. Change of Plea and Sentencing
On August 3, 2021, the district court conducted a
change-of-plea hearing, at which Cordero-Velázquez entered a
straight guilty plea to the one-count indictment. Later, in
preparation for sentencing and at the request of the district
court, probation prepared a Presentence Investigation Report
("PSR"). After adjusting the offense level based on the
characteristics of the offense and acknowledging
Cordero-Velázquez's acceptance of responsibility, the PSR
calculated a Total Offense Level ("TOL") of nineteen. The PSR
also recognized that Cordero-Velázquez had a criminal history
score of zero, which led to a Criminal History Category ("CHC") of
I. Based on the TOL of nineteen and CHC of I, the PSR calculated
a guidelines sentencing range ("GSR") of thirty to thirty-seven
months' imprisonment under the United States Sentencing
Guidelines.
In his sentencing memorandum, Cordero-Velázquez
emphasized his remorse for taking part in the illegal conduct at
issue and stressed that he wished "to become a more productive
member of society by pursuing a career as a barber[.]" He also
noted that he had "the support of his family" and believed the
underlying cause of his behavior -- his recently diagnosed mental
health conditions -- could now be addressed. Cordero-Velázquez
asked the court to take notice of these mitigating factors, as
- 5 - well as a mental health evaluation that Cordero-Velázquez also
submitted.
The district court held a sentencing hearing on
November 5, 2021. At sentencing, Cordero-Velázquez's counsel
highlighted that during Cordero-Velázquez's pretrial release, he
was able to obtain a GED and find employment. Cordero-Velázquez's
counsel also noted his client's mental health struggles and the
need for mental health treatment, which counsel believed could not
be adequately provided in prison. Lastly, counsel again noted
that Cordero-Velázquez's family was very supportive of him. With
all of that in mind, Cordero-Velázquez asked for "a sentence of
probation."
In response, the government acknowledged that
Cordero-Velázquez pled "guilty without the benefit of a [p]lea
[a]greement" and "he was honest on-scene" with law enforcement.
Even so, the government argued that the court should also consider
Cordero-Velázquez's marijuana use while he was on pretrial release
and that he was a prohibited person and "not allowed to have a
firearm" because of his mental health conditions. Accordingly,
the government recommended a within-guidelines sentence of
thirty-three months' imprisonment.
Ultimately, the district court agreed with the PSR as to
Cordero-Velázquez's TOL of nineteen and his CHC of I. Thus, the
district court found that the applicable GSR was thirty to
- 6 - thirty-seven months' imprisonment. During sentencing, the
district court noted that it had considered the 18 U.S.C. § 3553(a)
factors, as well as Cordero-Velázquez's sentencing memorandum,
both parties' arguments at the sentencing hearing, and the mental
health evaluation Cordero-Velázquez submitted. The district court
then recognized Cordero-Velázquez's repeated violations of his
pretrial release. After recounting the facts, the district court
ultimately determined "that neither sentence recommended by the
parties reflects the seriousness of the offense, promotes respect
for the law, protects the public from further crimes by
[Cordero-Velázquez], nor does it address the issues of deterrence
and punishment."
In determining the sentence, the district court supplied
a number of reasons in support of why it thought Cordero-Velázquez
needed a higher sentence than those recommended by the parties.
First, the district court described machine guns as "highly
dangerous and unusual weapons." The district court added that the
guidelines "do not differentiate" between typical manufactured
machine guns and modified machine guns, like the one present here.
In describing the differences between these two types of machine
guns, the district court stated:
Machine pistols, like the one defendant possessed, are difficult, if not impossible, to control due to their recoil, or kickback. This recoil causes the muzzle of the machine gun to change its direction, which then puts
- 7 - the life or serious injury of people near the shooter's intended target in grave danger.
Contrary to a manufactured machine gun, supports to counteract the recoil and control the weapon simply do not exist. Even more so, when the machine gun is in the hands of a shooter with no training to use it properly, a shooter's lack of training risks spraying helter skelter a large amount of bullets, especially from a fully loaded high capacity magazine like the one defendant possessed.
Because the district court disagreed with the guidelines' failure
to acknowledge these differences, it determined that a variance
under Kimbrough v. United States, 552 U.S. 85 (2007), was
appropriate. The district court also considered the amount of
ammunition present and "the serious and acute problem of gun
violence in Puerto Rico." Lastly, the district court considered
the "high rate of recidivism among firearm offenders." With these
considerations in mind, the district court sentenced
Cordero-Velázquez to forty-eight months' imprisonment, followed by
three years of supervised release.
After the district court announced the sentence,
Cordero-Velázquez's counsel objected to it on "procedural and
substantive grounds, as to the length of the incarceration period"
because "the [c]ourt has not made for the record specific
articulable facts related to the offense other than[,] as the
[c]ourt correctly notes, the criminal situation in Puerto Rico as
allowed by Flores in the . . . First Circuit." And counsel
- 8 - objected to the sentence because of the disparity between
Cordero-Velázquez's sentence and the sentence given to his
co-defendant, Casillas-Negrón.2 In response, the district court
noted that this disparity occurred because Cordero-Velázquez was
a prohibited person as a marijuana user and "a mental health
patient" and therefore subject to a higher Base Offense Level
("BOL"), while Casillas-Negrón was not.
Cordero-Velázquez subsequently filed a timely notice of
appeal as to the sentence imposed.3
II. Discussion
On appeal, Cordero-Velázquez takes issue with several
factors the district court considered at sentencing. First,
Cordero-Velázquez argues that the district court should not have
considered that the machine gun at issue was a modified machine
gun because that "is already accounted in the charge of conviction
and the sentencing [g]uidelines." Second, Cordero-Velázquez
argues that the district court "failed to make an individual
2 Casillas-Negrón was sentenced to thirty-six months' imprisonment followed by a three-year term of supervised release. 3Cordero-Velázquez was released from incarceration in June 2024. He is currently serving his term of supervised release. Cordero-Velázquez "thus continues to have a stake in the outcome of this appeal because 'if we were to determine that his incarcerative sentence was unreasonable, he could seek equitable relief.'" United States v. Delgado, 106 F.4th 185, 191 n.2 (1st Cir. 2024) (cleaned up) (quoting United States v. Reyes-Barreto, 24 F.4th 82, 85 (1st Cir. 2022)).
- 9 - assessment" of the circumstances here and instead relied on general
factors such as "the Puerto Rico firearms problem," "the likelihood
of recurrence of firearm offenders," and the effect of higher
sentences in deterring firearm offenders. Cordero-Velázquez also
launches two additional attacks on the sentence imposed: first,
that there is an unwarranted sentencing disparity between his
sentence and that given to his co-defendant; and second, that his
sentence was "greater than necessary" because the district court
"failed to give weight to [the] totality of the circumstances."
A. Standard of Review
"Appellate review of claims of sentencing error entails
a two-step pavane." United States v. Vaquerano Canas, 81 F.4th
86, 91 (1st Cir. 2023) (quoting United States v. Melendez-Rosado,
57 F.4th 32, 37 (1st Cir. 2023)). Typically, we first examine
claims of procedural error and then assess claims of substantive
unreasonableness. Id.
Preserved claims of sentencing error are reviewed for
abuse of discretion. See United States v. Melendez-Hiraldo, 82
F.4th 48, 53 (1st Cir. 2023). "This is a multifaceted standard
whereby 'we apply clear error review to factual findings, de novo
review to interpretations and applications of the guidelines, and
abuse of discretion review to judgment calls.'" Id. at 54 (quoting
United States v. Nieves-Mercado, 847 F.3d 37, 42 (1st Cir. 2017)).
- 10 - Unpreserved claims, on the other hand, are reviewed
under our plain error standard. See id. "Plain error requires a
defendant to show: '(1) that an error occurred (2) which was clear
or obvious and which not only (3) affected the defendant's
substantial rights, but also (4) seriously impaired the fairness,
integrity, or public reputation of judicial proceedings.'" United
States v. Cruz-Agosto, 102 F.4th 20, 24 (1st Cir. 2024) (quoting
United States v. Lessard, 35 F.4th 37, 42 (1st Cir. 2022)).
B. Procedural Reasonableness
Procedural errors can include "failing to calculate (or
improperly calculating) the [g]uidelines range, treating the
[g]uidelines as mandatory, failing to consider the § 3553(a)
factors, selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence -- including an
explanation for any deviation from the [g]uidelines range."
Melendez-Hiraldo, 82 F.4th at 53 (quoting Gall v. United States,
552 U.S. 38, 51 (2007)). "During sentencing, a court must 'state
in open court the reasons for its imposition of the particular
sentence.'" United States v. Reyes-Correa, 81 F.4th 1, 10 (1st
Cir. 2023) (quoting 18 U.S.C. § 3553(c)). When imposing an
above-guidelines sentence, the sentencing court "must justify the
upward variance." Id. (quoting United States v. Del
Valle-Rodríguez, 761 F.3d 171, 176 (1st Cir. 2014)). "To
successfully justify a variance, the court needs to 'articulate
- 11 - why it believes that the defendant's case differs from the norm.'"
Id. (cleaned up) (quoting Del Valle-Rodríguez, 761 F.3d at 177).
From his briefing, Cordero-Velázquez appears to shoehorn
nearly all of the alleged errors as claims of procedural error
(labeling only his claim that the sentence was "greater than
necessary" as a substantive reasonableness challenge). At oral
argument, however, Cordero-Velázquez affirmed that he was mounting
both a procedural and a substantive reasonableness challenge.
Where unclear, to Cordero-Velázquez's benefit and "out of 'an
abundance of caution, we inspect his claims . . . through both
lenses.'" United States v. Calderon-Zayas, 102 F.4th 28, 35-36
(1st Cir. 2024) (quoting United States v. Ruperto-Rivera, 16 F.4th
1, 5 (1st Cir. 2021)). Our first step is to assess which of
Cordero-Velázquez's claims of procedural error are preserved for
our review.
"[T]o preserve a claim of procedural sentencing error
for appellate review, [a defendant's] objection need not be framed
with exquisite precision." Reyes-Correa, 81 F.4th at 10 (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. (quoting
United States v. Soto-Soto, 855 F.3d 445, 448 n.1 (1st Cir. 2017)).
We take each of Cordero-Velázquez's procedural challenges in turn,
while first addressing these preservation issues.
- 12 - 1. Improper Considerations at Sentencing
At sentencing, counsel for Cordero-Velázquez
specifically objected on the grounds that "the [c]ourt has not
made for the record specific articulable facts related to the
offense other than as the [c]ourt correctly notes, the criminal
situation in Puerto Rico as allowed by Flores in the . . . First
Circuit." Counsel also added that the intention of submitting the
mental health evaluation was to provide the court with mitigating
factors. We find that the district court was thus properly put on
notice that Cordero-Velázquez was challenging the district court's
alleged reliance on only general sentencing factors and that
Cordero-Velázquez was claiming that the district court's
considerations were not sufficiently particularized to
Cordero-Velázquez's circumstances. See Reyes-Correa, 81 F.4th at
10. For these preserved claims, "we will 'review the district
court's justification for varying upward under the familiar
abuse-of-discretion standard.'" Id. (quoting United States v.
Serrano-Berríos, 38 F.4th 246, 250 n.1 (1st Cir. 2022)).
But we find no reference in the record below to
Cordero-Velázquez's argument that the district court should not
have considered that the machine gun at issue was a modified
machine gun because that "is already accounted in the charge of
conviction and the sentencing [g]uidelines." Nor do we think that
such an argument can be inferred from the objections that
- 13 - Cordero-Velázquez did assert. Thus, that challenge can be reviewed
only under our plain-error standard. That conclusion is fatal to
this argument because Cordero-Velázquez "'does not attempt to
satisfy that standard of review' in his opening brief."
Melendez-Hiraldo, 82 F.4th at 54 (quoting United States v.
Rodriguez-Monserrate, 22 F.4th 35, 40 (1st Cir. 2021)). This
unpreserved claim has thus been waived before this court.4
We now turn back to the remaining preserved argument
regarding the district court's alleged generalized considerations
at sentencing. Cordero-Velázquez points to several factors that
he believes were too general for the court to consider in his
sentencing, including: "the Puerto Rico firearms problem"; "the
likelihood of recurrence of firearm offenders"; and the effect of
higher sentences in deterring firearm offenders.
4 Even if this claim of error were reviewable at this juncture,
Cordero-Velázquez failed to address, in his opening brief, the district court's reasoning for considering the modification of the machine gun at issue. Although Cordero-Velázquez recognizes that the district court upwardly varied, in part, because of its disagreement with the guidelines' computations as to the guidelines' treatment of modified machine guns, he does not address the district court's Kimbrough rationale. Indeed, Cordero-Velázquez failed to present any developed argumentation as to how a Kimbrough variance should or should not apply and failed to cite Kimbrough with respect to this issue nor does he do so anywhere in his reply brief. Thus, this argument is waived before us regardless of the applicable standard of review. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (holding that "[i]t is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel's work, create the ossature for the argument, and put flesh on its bones").
- 14 - We pause our substantive review to address another
procedural snafu in relation to this challenge. Although we find
that Cordero-Velázquez put the district court on notice that he
objected to its consideration of generalized factors, he seems to
have conceded below that the district court was permitted to
consider one of the factors he now challenges on appeal. It is
somewhat unclear what Cordero-Velázquez's counsel was referring to
at the sentencing hearing when they stated that "the [c]ourt has
not made for the record specific articulable facts related to the
offense other than[,] as the [c]ourt correctly notes, the criminal
situation in Puerto Rico as allowed by Flores in the . . . First
Circuit." (Emphasis added.) The only plausible reading we can
gather from the transcript is that Cordero-Velázquez's counsel was
referring to our decision in United States v. Flores-Machicote,
where we held that "it is permissible for a sentencing court to
consider the incidence and trend lines of particular types of crime
in the affected community."5 706 F.3d 16, 23 (1st Cir. 2013).
Counsel, therefore, appears to have stated that the district
court's only proper, particularized considerations were the
community factors outlined in Flores-Machicote.
5 Our understanding is also supported by Cordero-Velázquez's opening brief, which specifically cites to Flores-Machicote in discussing this issue.
- 15 - Thus, it appears that any argument that the district
court did not appropriately apply Flores-Machicote or that its
considerations fell outside of Flores-Machicote were affirmatively
waived below, as Cordero-Velázquez appears to have "intentionally
relinquish[ed] or abandon[ed]" that argument. See United States
v. Hansen, 434 F.3d 92, 101 (1st Cir. 2006). The only feasible
consideration that the district court articulated that may fall
into this Flores-Machicote bucket is "the Puerto Rico firearms
problem," which Cordero-Velázquez now attempts to challenge on
appeal. In light of Cordero-Velázquez's counsel's seeming
concession at sentencing -- that it was proper, under
Flores-Machicote for the district court to consider Puerto Rico's
"firearms problem" -- we think this argument was likely
affirmatively waived below.6
Regardless of this apparent waiver, even though the
district court "may have lingered longer than necessary on
community characteristics," it then discussed further
individualized characteristics as related to Cordero-Velázquez and
the circumstances at issue. See Flores-Machicote, 706 F.3d at 24.
For example, the district court noted that not only did
Cordero-Velázquez admit to previously firing this weapon, but he
6"Waiver is distinct from forfeiture, which occurs when a party fails to timely assert a right, in that a forfeited issue is reviewed for plain error while a waived issue generally may not be reviewed." Hansen, 434 F.3d at 101.
- 16 - and Casillas-Negrón also "illegally shared" the weapon, "adding to
the already pervasive problem of illegal possession of machine
guns in Puerto Rico."
By our count, what remains of Cordero-Velázquez's
procedural challenge to the district court's alleged improper
considerations is his argument that the district court's reliance
on "high recidivism of firearms offenders" and "the deterrence
effect of higher sentences to firearm offenders" was not
sufficiently individualized to Cordero-Velázquez's circumstances.
This court has reiterated "the requirement that an upward variance
be moored to individual characteristics of either the offender or
the offense of conviction." Melendez-Hiraldo, 82 F.4th at 55
(cleaned up) (quoting United States v. Flores-Nater, 62 F.4th 652,
656 (1st Cir. 2023)). As to the adequacy of the rationale, it
will "pass[] muster if it identifies 'idiosyncratic facts that
remove the case from the heartland of the applicable guideline
provisions.'" Id. (cleaned up) (quoting United States v.
Bruno-Campos, 978 F.3d 801, 806 (1st Cir. 2020)).
Here, the district court made additional individualized
findings.7 The court discussed Cordero-Velázquez's "history of
7 At this time, we take no view on the propriety of the district court's sentencing rationale related to the dangerousness of modified machine guns or the issue of gun violence in Puerto Rico; as noted above, any challenge to these considerations was waived.
- 17 - using marijuana" and his repeated violations of the conditions of
his pretrial release. Further, in addition to acknowledging
Cordero-Velázquez's admissions that he previously fired the weapon
and shared it with Casillas-Negrón, the district court also pointed
to the amount of ammunition and high-capacity magazines present
here.8
Although Cordero-Velázquez claims that the district
court also did not consider his "personal circumstances" or "his
emotional crisis as evidenced by the expert in the case," the
district court repeatedly noted that he had reviewed the mental
health evaluation and considered it for sentencing. Cf. United
States v. Robles-Alvarez, 874 F.3d 46, 52 (1st Cir. 2017) (finding
sentence procedurally unreasonable where "the district court[]
fail[ed] to address, or even acknowledge, the appellant's
potentially persuasive argument for a downward variance"). The
district court also specifically recognized that Cordero-Velázquez
achieved his GED and had a positive employment history. Paired
8 Cordero-Velázquez did not, in his opening brief or before the district court, argue that the amount of ammunition present here does not take this case out of the mine-run of ordinary machine gun possession cases. Because this argument was raised before us only in his reply brief, we take no view on this issue. See United States v. Evans-Garcia, 322 F.3d 110, 114 (1st Cir. 2003) ("Arguments raised for the first time in reply briefs are generally deemed waived."). We merely note that in prior cases we have found higher amounts of ammunition to be "entirely consistent with simple possession of a machine gun." United States v. Rivera-Berríos, 968 F.3d 130, 133, 135 (1st Cir. 2020) (finding thirty-six rounds of ammunition was not a "large cache").
- 18 - with the individualized considerations described above, these
statements emphasize that the district court's sentence was based
on Cordero-Velázquez's specific circumstances. All of the
potentially mitigating factors presented on appeal were also
before the district court at sentencing, and we have no reason to
conclude that the district court overlooked them. See United
States v. Cortés-Medina, 819 F.3d 566, 570-71 (1st Cir. 2016)
(finding that potentially mitigating factors "were vigorously
pressed by defense counsel" at sentencing and "[t]here [was] not
the slightest reason to think that the district court overlooked
them").
For these reasons, we find that "the district court's
explanation is grounded in 'case specific considerations,'" such
that its considerations were sufficiently individualized and
procedurally sound. See United States v. Politano, 522 F.3d 69,
74 (1st Cir. 2008) (quoting United States v. Martin, 520 F.3d 87,
96-97 (1st Cir. 2008)).
2. Sentencing Disparity
The guidelines direct district courts to consider in
sentencing "the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found guilty
of similar conduct." 18 U.S.C. § 3553(a)(6). "While this
instruction 'is primarily aimed at national disparities,' it also
permits consideration of disparities among co-defendants."
- 19 - Robles-Alvarez, 874 F.3d at 52 (quoting United States v.
Reyes-Santiago, 804 F.3d 453, 467 (1st Cir. 2015)).
We have found procedural error when a district court has
failed to address or acknowledge a defendant's argument related to
a sentencing disparity between that defendant and their
co-defendants. Id. at 52-53. That is simply not the case here.
In response to Cordero-Velázquez's objection, the district court
stated that Cordero-Velázquez was different than his co-defendant
in that Cordero-Velázquez was a prohibited person and therefore
subject to a different BOL. The district court did exactly what
it was required to do: "where the defendant 'presents nonfrivolous
reasons for imposing a different sentence, the judge will normally
go further and explain why [they have] rejected those arguments.'"
See id. at 52 (cleaned up) (quoting Rita v. United States, 551
U.S. 338, 357 (2007)). Cordero-Velázquez has offered no evidence
to the contrary.
Therefore, to the extent Cordero-Velázquez is asserting
a procedural error in the court's failure to address the
co-defendant disparity, we find that this argument fails. In an
abundance of caution, we also address Cordero-Velázquez's
sentencing disparity argument under our substantive reasonableness
framework below.
- 20 - C. Substantive Reasonableness
"[W]e have consistently held that by arguing for a
shorter sentence before the district court, a defendant preserves
a challenge to the substantive reasonableness of his sentence on
appeal." Melendez-Hiraldo, 82 F.4th at 56. We therefore review
this preserved challenge under our abuse-of-discretion standard.
See United States v. Diaz-Serrano, 77 F.4th 41, 47 (1st Cir. 2023).
When reviewing claims alleging substantive unreasonableness, we
"bear in mind that '. . . considerable deference is due to the
district court's judgment.'" Vaquerano Canas, 81 F.4th at 94
(cleaned up) (quoting United States v. de Jesús, 831 F.3d 39, 42
(1st Cir. 2016)).
"[T]here is no one reasonable sentence in any given case
but, rather, a universe of reasonable sentencing outcomes." Id.
(quoting United States v. Clogston, 662 F.3d 588, 592 (1st Cir.
2011)). "Our review is limited to determining whether the district
court's sentence, in light of the totality of the circumstances,"
is within that reasonable universe. Melendez-Hiraldo, 82 F.4th at
53 (cleaned up) (quoting United States v. Rossignol, 780 F.3d 475,
477 (1st Cir. 2015)). "A sentence is substantively reasonable if
the district court provided a 'plausible sentencing rationale and
reached a defensible result.'" Vaquerano Canas, 81 F.4th at 94
(quoting United States v. Ouellette, 985 F.3d 107, 111 (1st Cir.
2021)).
- 21 - 1. Totality of the Circumstances
Cordero-Velázquez argues that the district court "failed
to give weight to [the] totality of the circumstances" by not
considering that he was a first-time offender, that he was not
carrying the weapon at the time of the arrest, that he cooperated
with the authorities, and that he was struggling with mental health
conditions.
When reviewing an upwardly variant sentence, "we 'give
due deference to the district court's decision that the § 3553(a)
factors, on the whole, justify the extent of the variance.'"
United States v. Ríos-Rivera, 913 F.3d 38, 46 (1st Cir. 2019)
(quoting Gall, 552 U.S. at 51). "Where, as here, a court has
correctly calculated the GSR, 'sentencing becomes a judgment call,
and a variant sentence may be constructed based on a complex of
factors whose interplay and precise weight cannot even be precisely
described.'" United States v. Guzman-Fernandez, 824 F.3d 173, 178
(1st Cir. 2016). In deciding whether the district court employed
a plausible rationale for the sentence, we have noted that "an
adequate explanation for an upward variance and a plausible
rationale for that variance are almost always two sides of the
same coin." United States v. Valle-Colón, 21 F.4th 44, 50 (1st
Cir. 2021).
As described above, the district court provided an
adequate explanation for its sentence, and we see no reason to
- 22 - belabor our discussion of the district court's plausible
rationale, so we only quickly summarize here. The sentencing court
based its variant sentence on many factors including: the
modification of the machine gun, the high rate of firearms crimes
in Puerto Rico, the high recidivism rate of firearms offenders,
the prior use and sharing of the firearm at issue,
Cordero-Velázquez's history of marijuana use, and the amount of
ammunition and high-capacity magazines recovered here.
Cordero-Velázquez does not present any developed argumentation as
to why the district court's consideration of these factors
constitutes error. Thus, with these factors in mind, we find the
district court's rationale was plausible.
Cordero-Velázquez further argues that "the sentencing
court penalized [him] for his [mental health] condition," instead
of treating that as a mitigating factor. First, we note that
"[s]imply because the court did not weigh [certain factors] as
[Cordero-Velázquez] would have liked 'does not undermine the
plausibility of the sentencing rationale.'" Vaquerano Canas, 81
F.4th at 95 (cleaned up) (quoting United States v. Coombs, 857
F.3d 439, 452 (1st Cir. 2017)). Second, we believe
Cordero-Velázquez is misconstruing the district court's sentencing
rationale. We find no evidence in the record that the district
court "penalized" Cordero-Velázquez for his mental health
condition. Instead, what the record reveals is that the district
- 23 - court explained to Cordero-Velázquez that because he was a "mental
health patient," Cordero-Velázquez was considered a "prohibited
person" and subject to a higher BOL than Casillas-Negrón.
Cordero-Velázquez never challenged the finding that he was a
prohibited person or objected to his BOL.9 Thus, we find that the
district court properly explained to Cordero-Velázquez the
reasoning for his different BOL, and this explanation did not
affect the plausibility of the sentencing rationale.
9 Because Cordero-Velázquez does not challenge this aspect of his sentencing, we do not consider whether the district court correctly determined that Cordero-Velázquez was a prohibited person. We pause to note, however, that 18 U.S.C. § 922(g)(4) prohibits from possessing firearms only those "who ha[ve] been adjudicated as a mental defective or who ha[ve] been committed to a mental institution"; it does not extend to every person who experiences a mental health issue or receives a mental health diagnosis. Our review of the record does not reveal that Cordero-Velázquez was ever committed to a mental health institution or "adjudicated as a mental defective." As to Cordero-Velázquez's status as a "drug user," the relevant statute and guidelines apply only to those who are "an unlawful user of or addicted to any controlled substance," 18 U.S.C. § 922(g)(3), "at the time the defendant committed the instant offense," U.S.S.G. § 2K2.1(a)(4)(B). Thus, any unlawful drug use after arrest when on pre-trial release is irrelevant to a defendant's status as a prohibited person. However, the record reveals that Cordero-Velázquez reportedly obtained a medical marijuana card at age twenty-six and was using marijuana pursuant to a prescription prior to his arrest. Cordero-Velázquez did not argue that his drug use prior to arrest was lawful or request that the district court consider the medical nature of his drug use when fashioning an appropriate sentence. Because Cordero-Velázquez did not make these arguments, we do not address them here.
- 24 - The length of the sentence here is also defensible. We
recognize that the sentence was significantly longer than the
sentences the parties recommended. No additional period of
imprisonment is insignificant to the incarcerated, particularly
one that is 11 months over the top of the GSR, amounting to an
approximately 30% upward variance. See United States v.
Colón-Cordero, 91 F.4th 41, 53 (1st Cir. 2024) (finding that nine
months of additional imprisonment "would readily be understood as
a significant time period by any reasonable measure"). However,
the variance here is consistent with others that we have previously
upheld as substantively reasonable when supported by a plausible
rationale. See Guzman-Fernandez, 824 F.3d at 178-79 (collecting
cases); see also United States v. Carvajal, 85 F.4th 602, 615 (1st
Cir. 2023) (utilizing a percentage basis when comparing upward
variances in different cases). Ultimately, while the 48-month
sentence here may seem long given the circumstances, we cannot say
that it "is 'outside the universe of reasonable sentences for an
offense with a statutory maximum of 120 months.'" See United
States v. Pedroza-Orengo, 817 F.3d 829, 837 (1st Cir. 2016)
(quoting United States v. Paulino-Guzman, 807 F.3d 447, 451 (1st
Cir. 2015)).
Cordero-Velázquez seems to also argue on appeal that his
co-defendant, Casillas-Negrón, was more culpable than he was
- 25 - because Casillas-Negrón was "the one that had the firearm in his
possession and [was] the owner of the same," while
Cordero-Velázquez "only loaned it from him." He also states that
the fact that he "was a drug user and a mental [health] patient"
was not sufficient justification for the court to treat him
differently than Casillas-Negrón in sentencing.
We again note that "[w]hen crafting a sentence, the court
must consider 'the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found guilty
of similar conduct.'" Diaz-Serrano, 77 F.4th at 48 (quoting
18 U.S.C. § 3553(a)(6)). "While 'this provision is primarily
aimed at national disparities,' a sentence may be substantively
unreasonable if 'two identically situated defendants receive
different sentences from the same judge.'" Id. (quoting
Reyes-Santiago, 804 F.3d at 467).
"[A]s a general matter, 'a defendant is not entitled to
a lighter sentence merely because [their] co-defendants received
lighter sentences.'" Robles-Alvarez, 874 F.3d at 53 (quoting
Reyes-Santiago, 804 F.3d at 467). Further, a defendant must show
that "the more leniently sentenced co-defendant [was not]
materially different [from the defendant] in any respect that could
influence the court's sentencing decision." Diaz-Serrano, 77
F.4th at 48. "Establishing a co-defendant as an appropriate
comparator may be a challenge given 'the myriad factors that come
- 26 - into play at sentencing.'" Id. (quoting Reyes-Santiago, 804 F.3d
at 467).
There are certainly many commonalities between
Cordero-Velázquez and Casillas-Negrón, including that they both
pled guilty to substantially the same conduct. In a vacuum, it
may seem as though their sentences should be similar. However,
the district court identified at least one major reason why they
were dissimilar: Cordero-Velázquez was a prohibited person under
the guidelines, where Casillas-Negrón was not. Cordero-Velázquez
does not provide any argument as to why this was not sufficient to
make his co-defendant an inappropriate comparator. We also
identify other differences in the record between the pair:
Cordero-Velázquez admitted to previously firing the weapon at
issue; and he also repeatedly violated the conditions of his
pretrial release. These were factors considered by the district
court at sentencing.
Thus, "[b]ecause the district court had a supportable[,
unchallenged] basis for the perceived inconsistency in sentencing,
[Cordero-Velázquez's] claim that his sentence was substantively
unreasonable based on an unwarranted sentencing disparity fails."
See id. at 49.
III. Conclusion
For the foregoing reasons, we affirm the sentence
imposed by the district court.
- 27 -