United States Court of Appeals For the First Circuit
Nos. 23-1204, 23-1205
UNITED STATES,
Appellee,
v.
KALEL JORELL MARTÍNEZ-BRISTOL,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Gelpí, Lynch, and Montecalvo, Circuit Judges.
Raymond Sánchez Maceira on brief for appellant. Gregory B. Conner, Assistant United States Attorney, W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá Almonte, Assistant United States Attorney, Chief, Appellate Division, on brief for appellee.
April 1, 2025 LYNCH, Circuit Judge. In these consolidated appeals,
Kalel Martínez-Bristol challenges his 46-month sentence imposed in
2023 after he pled guilty to possession of a firearm and the
15-month sentence imposed for violation of his supervised release
terms stemming from his conviction of a federal felony in 2011.
Martínez has waived any appeal from his felon-in-possession
conviction and sentence by failing to brief those issues in this
court. As to the sentence for a grade A violation of his supervised
release, we hold there was no error.
I.
On June 24, 2021, Martínez was indicted by a federal
grand jury on one count of being a felon in possession of a firearm
and ammunition in violation of 18 U.S.C. § 922(g)(1) and one count
of possession of a machinegun in violation of 18 U.S.C. § 922(o).
Because Martínez was on federal supervised release for a 2011 drug
conspiracy conviction, revocation proceedings were initiated. The
two cases were consolidated before the judge who had heard his
2021 case.
Martínez pled guilty to the new indictment as to the
felon-in-possession count on September 9, 2022. Martínez in due
course received the presentence report on November 10, 2022. The
report identified the firearm Martínez had been charged with
possessing as a pistol with "a visible machinegun conversion
device, commonly known as 'Chip[,'] attached to the rear of the
- 2 - slide." The report also calculated Martínez's base offense level
as 22 because the offense involved a firearm that is described in
26 U.S.C. § 5845(a), which includes machineguns but not "a pistol
or a revolver having a rifled bore."1 See 26 U.S.C. §§ 5845(a)(6),
(e). Martínez did not object to the presentence report. On
February 6, 2023, the district court sentenced Martínez to 46
months' imprisonment for his felon-in-possession conviction, the
low end of the guidelines range.2 During the sentencing hearing,
the district court stated that Martínez's offense involved
possession of "one Glock pistol . . . that had a visible machinegun
conversion device, commonly known as a chip, that was attached to
the same." The district court asked Martínez if the sections of
1 The weapons identified in § 5845(a) include: (1) a shotgun having a barrel or barrels of less than 18 inches in length; (2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length; (3) a rifle having a barrel or barrels of less than 16 inches in length; (4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length; (5) any other weapon, as defined in subsection (e); (6) a machinegun; (7) any silencer . . . ; and (8) a destructive device. 26 U.S.C. § 5845(a). 2 On March 27, 2024, on Martínez's motion, his sentence on this conviction was reduced to 37 months' imprisonment based on the retroactive application of a reduction in the relevant guidelines range by the United States Sentencing Commission.
- 3 - the presentence report describing the offense were correct, and
Martínez responded that they were.
As to the separate supervised release violation, the
government argued that because a machinegun was involved it was a
Grade A violation, which carried a guidelines sentence of 12-18
months, while Martínez argued for a Grade B violation, which
carried a guidelines sentence of 4-10 months. Martínez's attorney
purported to express surprise, claiming he "was under the
impression that the Government was going to argue . . . that
[Martínez] has committed a grade B violation" and sought a
continuance. The district court granted the continuance and
scheduled the revocation hearing for three days later without any
objection from counsel.
At the continued hearing three days later, Martínez
attempted to argue there was no evidence that the gun Martínez
possessed was a machinegun and so a grade A violation was
inappropriate. The government pointed out that the description of
the gun as a machinegun was in the unobjected-to presentence report
in the 2021 criminal case. In light of this disagreement, the
district court adjourned the hearing for an hour to permit the
government to present expert testimony about whether Martínez's
firearm met the definition of a machinegun. Before adjourning,
the district court presented Martínez with three options: to have
the Government's expert testify and be subject to cross-
- 4 - examination, to take the expert's testimony via proffer and subject
the expert to cross-examination, or to accept the Government's
proffer without cross-examining the expert. Martínez chose the
second.
The hearing resumed an hour later. The government
proffer showed that an ATF special agent had performed a visual
review and "dry test" of Martínez's firearm and determined that
the pistol was a machinegun. The government then moved the agent's
report and photographs of the pistol into evidence. Martínez's
attorney acknowledged that he received those documents during
discovery prior to the guilty plea on September 9, 2022,
approximately five months before the revocation hearing.
The district court then asked Martínez's attorney
whether he wanted to cross-examine the Government's witness, but
Martínez's attorney declined, stating he was not ready to do so.
The district court determined that Martínez committed a
Grade A violation and sentenced him to 15 months' imprisonment,
consecutive to Martínez's sentence in his 2021 case.3
3 Martínez was released from incarceration in February 2025. However, he is currently serving a term of supervised release. Martínez "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." See United States v. Delgado, 106 F.4th 185, 191 n.2 (1st Cir. 2024) (quoting United States v. Reyes-Barreto, 24 F.4th 82, 85 (1st Cir. 2022)).
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United States Court of Appeals For the First Circuit
Nos. 23-1204, 23-1205
UNITED STATES,
Appellee,
v.
KALEL JORELL MARTÍNEZ-BRISTOL,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Gelpí, Lynch, and Montecalvo, Circuit Judges.
Raymond Sánchez Maceira on brief for appellant. Gregory B. Conner, Assistant United States Attorney, W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá Almonte, Assistant United States Attorney, Chief, Appellate Division, on brief for appellee.
April 1, 2025 LYNCH, Circuit Judge. In these consolidated appeals,
Kalel Martínez-Bristol challenges his 46-month sentence imposed in
2023 after he pled guilty to possession of a firearm and the
15-month sentence imposed for violation of his supervised release
terms stemming from his conviction of a federal felony in 2011.
Martínez has waived any appeal from his felon-in-possession
conviction and sentence by failing to brief those issues in this
court. As to the sentence for a grade A violation of his supervised
release, we hold there was no error.
I.
On June 24, 2021, Martínez was indicted by a federal
grand jury on one count of being a felon in possession of a firearm
and ammunition in violation of 18 U.S.C. § 922(g)(1) and one count
of possession of a machinegun in violation of 18 U.S.C. § 922(o).
Because Martínez was on federal supervised release for a 2011 drug
conspiracy conviction, revocation proceedings were initiated. The
two cases were consolidated before the judge who had heard his
2021 case.
Martínez pled guilty to the new indictment as to the
felon-in-possession count on September 9, 2022. Martínez in due
course received the presentence report on November 10, 2022. The
report identified the firearm Martínez had been charged with
possessing as a pistol with "a visible machinegun conversion
device, commonly known as 'Chip[,'] attached to the rear of the
- 2 - slide." The report also calculated Martínez's base offense level
as 22 because the offense involved a firearm that is described in
26 U.S.C. § 5845(a), which includes machineguns but not "a pistol
or a revolver having a rifled bore."1 See 26 U.S.C. §§ 5845(a)(6),
(e). Martínez did not object to the presentence report. On
February 6, 2023, the district court sentenced Martínez to 46
months' imprisonment for his felon-in-possession conviction, the
low end of the guidelines range.2 During the sentencing hearing,
the district court stated that Martínez's offense involved
possession of "one Glock pistol . . . that had a visible machinegun
conversion device, commonly known as a chip, that was attached to
the same." The district court asked Martínez if the sections of
1 The weapons identified in § 5845(a) include: (1) a shotgun having a barrel or barrels of less than 18 inches in length; (2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length; (3) a rifle having a barrel or barrels of less than 16 inches in length; (4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length; (5) any other weapon, as defined in subsection (e); (6) a machinegun; (7) any silencer . . . ; and (8) a destructive device. 26 U.S.C. § 5845(a). 2 On March 27, 2024, on Martínez's motion, his sentence on this conviction was reduced to 37 months' imprisonment based on the retroactive application of a reduction in the relevant guidelines range by the United States Sentencing Commission.
- 3 - the presentence report describing the offense were correct, and
Martínez responded that they were.
As to the separate supervised release violation, the
government argued that because a machinegun was involved it was a
Grade A violation, which carried a guidelines sentence of 12-18
months, while Martínez argued for a Grade B violation, which
carried a guidelines sentence of 4-10 months. Martínez's attorney
purported to express surprise, claiming he "was under the
impression that the Government was going to argue . . . that
[Martínez] has committed a grade B violation" and sought a
continuance. The district court granted the continuance and
scheduled the revocation hearing for three days later without any
objection from counsel.
At the continued hearing three days later, Martínez
attempted to argue there was no evidence that the gun Martínez
possessed was a machinegun and so a grade A violation was
inappropriate. The government pointed out that the description of
the gun as a machinegun was in the unobjected-to presentence report
in the 2021 criminal case. In light of this disagreement, the
district court adjourned the hearing for an hour to permit the
government to present expert testimony about whether Martínez's
firearm met the definition of a machinegun. Before adjourning,
the district court presented Martínez with three options: to have
the Government's expert testify and be subject to cross-
- 4 - examination, to take the expert's testimony via proffer and subject
the expert to cross-examination, or to accept the Government's
proffer without cross-examining the expert. Martínez chose the
second.
The hearing resumed an hour later. The government
proffer showed that an ATF special agent had performed a visual
review and "dry test" of Martínez's firearm and determined that
the pistol was a machinegun. The government then moved the agent's
report and photographs of the pistol into evidence. Martínez's
attorney acknowledged that he received those documents during
discovery prior to the guilty plea on September 9, 2022,
approximately five months before the revocation hearing.
The district court then asked Martínez's attorney
whether he wanted to cross-examine the Government's witness, but
Martínez's attorney declined, stating he was not ready to do so.
The district court determined that Martínez committed a
Grade A violation and sentenced him to 15 months' imprisonment,
consecutive to Martínez's sentence in his 2021 case.3
3 Martínez was released from incarceration in February 2025. However, he is currently serving a term of supervised release. Martínez "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." See United States v. Delgado, 106 F.4th 185, 191 n.2 (1st Cir. 2024) (quoting United States v. Reyes-Barreto, 24 F.4th 82, 85 (1st Cir. 2022)).
- 5 - II.
Martínez has not identified any error with or advanced
any argument as to his § 922(g)(1) conviction and sentence and so
has waived that issue. See United States v. Crocco, 15 F.4th 20,
25 (1st Cir. 2021) ("[A]rguments[] not raised in his opening
brief[] are waived.").
As to the revocation sentence, Martínez argues to us on
appeal, but did not argue before the district court, that his due
process and limited confrontation rights were violated. At most,
then, our review of this issue would be for plain error. See
United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir. 2015).
We hold that there was no error at all.
As we have made clear, Martínez had, and did not object
to, the evidence that the firearm at issue was a machinegun at
least five months before he attempted to raise the issue during
the supervised release revocation hearing. Beyond that, trial
courts have "broad discretion" when "ruling on motions for
continuances." United States v. Delgado-Marrero, 744 F.3d 167,
195 (1st Cir. 2014) (citation omitted). "While that discretion is
limited by a defendant's constitutional rights to testimony by
defense witnesses and effective assistance of counsel, 'only an
unreasoning and arbitrary insistence upon expeditiousness in the
face of a justifiable request for delay violates the right to the
- 6 - assistance of counsel.'" Id. (citations omitted) (quoting United
States v. Maldonado, 708 F.3d 38, 42 (1st Cir. 2013)).
Nor does Martínez even attempt to show that there was
any prejudice. The government's evidence was more than sufficient
to establish the gun he had in his possession was a machinegun.
We reject Martínez's appeals and affirm the judgments
below.
- 7 -