United States Court of Appeals For the First Circuit
Nos. 21-1903 22-1149 UNITED STATES OF AMERICA,
Appellee,
v.
JORGE MERCADO-CAÑIZARES,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Montecalvo, Thompson, and Aframe, Circuit Judges.
Jessica Earl, Assistant Federal Public Defender, 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. Julian N. Radzinschi, 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.
April 2, 2025 MONTECALVO, Circuit Judge. Jorge Mercado-Cañizares
("Mercado") appeals from a sixty-month sentence imposed for
violating the terms of supervised release ("revocation sentence").
He also appeals from a related forty-eight-month sentence imposed
after he pled guilty to one new count of illegally possessing a
machinegun, 18 U.S.C. § 922(o) ("§ 922(o) sentence") which is to
be served consecutively to the revocation sentence.
Mercado now challenges both sentences on procedural
grounds. On the revocation sentence, Mercado contends that the
district court failed to articulate an adequate basis for an 82%
upward variance from the top end of the sentencing range set by
the United States Sentencing Guidelines ("Guidelines"). And on
the related sentence for the new possession charge, which varied
30% upward from the top of the Guidelines sentencing range, Mercado
objects to the district court's reliance in sentencing on the
nature of the machinegun found in Mercado's possession; the
quantity of ammunition present; a policy disagreement with how the
Guidelines treat machineguns; and community-based statistics on
the prevalence of gun violence in Puerto Rico.
We agree with Mercado that the upward variance on his
revocation sentence was procedurally flawed and thus vacate the
revocation sentence and remand for resentencing. However, we find
no error regarding the § 922(o) sentence and therefore affirm it.
- 2 - I. Background
A. Factual Background
In 2013, Mercado began serving a prison sentence for an
armed robbery of a gas station. Mercado began his term of
supervised release on November 8, 2019. The conditions of his
supervised release, as relevant here, required him to (1) not
commit another crime; (2) not unlawfully use or possess any
controlled substances; (3) not possess any firearms or ammunition;
and (4) notify the probation officer at least ten days ahead of
time of any change of address.
On March 3, 2021, while still on supervised release,
Mercado was driving a car in Ponce, Puerto Rico. Puerto Rico
Police Bureau officers pulled Mercado over for not wearing a
seatbelt. During that stop, the officers observed a firearm inside
a fanny pack that was in the car. Mercado told the officers that
he did not have a firearms permit. The officers then seized the
firearm, a Glock pistol that was modified to shoot automatically
and loaded with a magazine containing fourteen rounds. The police
also found another magazine loaded with ten rounds inside the fanny
pack.
The officers arrested Mercado. Mercado told the
officers that he had additional ammunition at his apartment. The
officers then searched his apartment and found two loaded,
high-capacity magazines, each containing twenty-five rounds of
- 3 - ammunition. They also found two plastic baggies containing
cannabis.
B. Procedural Background
The day after Mercado was arrested, the United States
Probation Office ("Probation") petitioned the court to issue a
warrant and require Mercado to show cause why his supervised
release term should not be revoked. Mercado was charged a few
days after that with one count of possession of a machinegun in
violation of § 922(o) and one count of possession of a firearm and
ammunition by a prohibited person in violation of 18
U.S.C. § 922(g)(1). A revocation hearing for Mercado's violation
of the terms of his supervised release followed, where the district
court imposed a revocation sentence of sixty months -- the maximum
allowable sentence under 18 U.S.C. § 3583(e)(3). Then, the
parties reached a plea agreement regarding the new criminal charges
under which Mercado pled guilty to one count of possession of a
machinegun, id. § 922(o). Finally, a sentencing hearing for the
new charges for possession of a machinegun was held, where the
district court imposed a sentence of forty-eight months. We
describe the hearings and related events below.
1. Revocation Hearing
On October 18, 2021, the district court held a hearing
on the revocation of supervised release. At the hearing, Mercado
told the court that he was not contesting the factual basis
- 4 - supporting Probation's petition to revoke the supervised release
term. Mercado and the government agreed that the Guidelines
sentencing range for violating supervised release was twenty-seven
to thirty-three months.
Mercado requested a sentence of twenty-seven months,
emphasizing his voluntary cooperation with the police on locating
the additional ammunition he possessed at home and that he would
be punished again through his new criminal charges for the exact
same conduct at issue in the revocation. The government, by
contrast, requested a thirty-three-month sentence, stating that
"it's hard to imagine guns that are more dangerous than machine
guns" and noting that Mercado's previous conviction for armed
robbery also involved firearms.
The district court recognized the Guidelines sentencing
range of twenty-seven to thirty-three months. But the court also
observed that, under 18 U.S.C. § 3583(e)(3), it could impose a
maximum sentence of sixty months upon revocation of supervised
release because Mercado's original offense was a Class A felony.
It then stated that "[t]he [c]ourt has taken into consideration
the factors set forth in Title 18 United States Code Section
3553(a) and the seriousness of Mr. Mercado's violations." The
court concluded that:
Mr. Mercado has shown that he is unable to comply with the law or his conditions of supervision imposed by the [c]ourt.
- 5 - To reflect the seriousness of the offense, promote respect for the law, provide just punishment for Mr. Mercado's offense, afford adequate deterrence, and to protect the public from additional crimes by Mr. Mercado, the [c]ourt concludes that a sentence mandated by statute is sufficient but not greater than necessary to comply with the purposes set forth in Title 18 United States Code Section 3553(a).
The court then rendered a sentence of sixty months, an 82% upward
variance from the top end of the Guidelines sentencing range, with
no subsequent supervision.
Mercado's counsel objected to the sentence as both
procedurally and substantively unreasonable. Counsel noted that
the sentence imposed was almost double the higher end of the
Guidelines sentencing range, and higher even than the likely
maximum Guidelines sentence for Mercado's new charges. The court
noted counsel's objections and then ended the hearing.
2. Plea Agreement and § 922(o) Hearing
A few days after the revocation hearing, Mercado and the
government reached a plea agreement regarding the two new
possession of machinegun charges. Under the agreement's terms,
Mercado pled guilty to one count of possession of a machinegun, 18
U.S.C. § 922(o).1 The parties also agreed that, assuming a
1 Although the plea agreement is silent on the other charge of possession of a firearm and ammunition by a prohibited person, 18 U.S.C. § 922(g)(1), the parties appear to have agreed that this charge would be dismissed. At the end of the sentencing hearing
- 6 - Criminal History Category of III, the recommended Guidelines
sentencing range was thirty to thirty-seven months. The parties
further agreed that Mercado would request a sentence at the low
end of the recommended range, while the government would recommend
a sentence in the middle of the recommended range.
On February 3, 2022, Probation filed its PSR on the new
criminal charges. The PSR calculated Mercado's Criminal History
Category as III and the Total Offense Level as seventeen;
accordingly, it calculated a Guidelines sentencing range of thirty
to thirty-seven months. The PSR also noted that, in considering
a sentence outside the Guidelines recommendations,
the [c]ourt may consider that this is not the defendant's first weapons law violation and that pistols modified to be fully automatic, such as the one possessed by the defendant, present dangers additional to those raised by machineguns that are manufactured as such. As these firearms modified to shoot automatically do not have mechanisms to manage the recoil, they cause the muzzle to change direction from that of its intended target, placing anyone who is within the vicinity of the shooter in danger. These modified weapons inhibit the user from being able to control the weapon during discharge and risk[] spraying an uncontrollable large volume of bullets in seconds making it even deadlier.
for the § 922(o) offense, the government moved to dismiss all other remaining counts, which the district court granted.
- 7 - The § 922(o) sentencing hearing was held a week later on
February 10, 2022. Per the parties' agreement, Mercado requested
thirty months, the low end of the Guidelines range, and emphasized
that the district court had already sentenced him to a statutory
maximum of sixty months at the supervised release revocation
hearing.
The government then recommended thirty-four months as
agreed. The government noted that it "did take into consideration,
at least from our end, the sentence upon revocation when agreeing
to the 34 months."
The district court imposed a sentence of forty-eight
months, a 30% upward variance from the Guidelines maximum of
thirty-seven months, followed by three years of supervised
release. It identified several grounds for the upward variance.
First, the court opined that "[a] modern machine gun can fire more
than a thousand rounds a minute, allowing a shooter to kill dozens
of people within a matter of seconds. Short of bombs, missiles,
and biochemical agents, the [c]ourt can conceive of few weapons
that are more dangerous than machine guns."
Second, the court noted that pistols modified to shoot
automatically are more dangerous than guns manufactured to shoot
that way because they "are difficult, if not impossible, to control
due to their recoil or kickback," but the Guidelines do not
differentiate between the two kinds. The court then referenced
- 8 - Kimbrough v. United States, 552 U.S. 85 (2007), to register its
disagreement with the Guidelines' "low . . . range in machine gun
cases."
Third, the court noted that "the First Circuit Court of
Appeals has repeatedly held that large amounts of . . . ammunition
may warrant a variance, because it is a consideration not . . .
adequately accounted for in the [G]uidelines, and because
[ammunition] contribute[s] to the lethalness of the machine gun."
Fourth, the court considered "the serious and acute
problem of gun violence in Puerto Rico, as the First Circuit Court
of Appeals has acknowledged it may do. The statistics bear this
out. Higher sentences for gun-related offenses do have a deterrent
effect. Increased sentences for gun-related offenses decreased
gun violence."
Fifth and finally, the court stated that "Sentencing
Commission statistics . . . demonstrate that firearms offenders
recidivate at a higher rate and more quickly than non-firearms
offenders in every criminal history category. Mr. Mercado is an
example of that recidivism. He has certainly not learned his
lesson."
Mercado's counsel then objected to the procedural and
substantive reasonableness of the sentence. Counsel noted that
Mercado was "being punished twice on an upward variance for
possessing the exact same gun on the exact same day." Counsel
- 9 - also pointed out that the Guidelines already consider Mercado's
prior criminal history and that Mercado was in possession of a
machinegun. Counsel then closed by requesting the court to
sentence Mercado within the Guidelines range "because he was
already punished for this same exact conduct."
The court denied the request and concluded the hearing.
This timely appeal followed.
II. Legal Standards
A. Preserved and Unpreserved Claims
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 [G]uidelines,
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)).
Unpreserved claims, on the other hand, are reviewed
under our plain error standard. See id. at 53. "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
- 10 - (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 Guidelines range, treating the
Guidelines 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 Guidelines 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
why it believes that the defendant's case differs from the norm.'"
Id. (cleaned up) (quoting Del Valle-Rodríguez, 761 F.3d at 177).
III. Discussion
Mercado now argues that both the sixty-month sentence
imposed at the revocation hearing and the forty-eight-month
sentence imposed at the § 922(o) sentencing hearing were
- 11 - procedurally unreasonable.2 We agree that the sixty-month sentence
was procedurally defective and remand for resentencing. However,
we discern no reversible error as to the forty-eight-month
sentence, and accordingly affirm. We explain in turn.
A. Revocation Sentence
We first address the government's threshold argument
that Mercado failed to preserve any procedural error claim for
appellate review. Finding otherwise, we proceed to the merits of
Mercado's procedural claim and conclude that the district court's
revocation sentence was procedurally flawed.
1. Preservation
As a preliminary matter, the government contends that
Mercado did not preserve his procedural error claim for review,
and therefore plain error review should apply.
We disagree. We have observed that "[a] general
objection to the procedural reasonableness of a sentence is not
sufficient to preserve a specific challenge to any of the
sentencing court's particularized findings." United States v.
Soto-Soto, 855 F.3d 445, 448 n.1 (1st Cir. 2017). At the same
2At each hearing, Mercado objected to both the procedural and substantive reasonableness of the sentence imposed. However, on appeal, Mercado does not advance any argument on substantive reasonableness. We thus do not address it now. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[It is a] settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.").
- 12 - time, "a defendant's objection [to procedural sentencing error]
need not be framed with exquisite precision" to preserve the claim
for appellate review. United States v. Rivera-Berríos, 968 F.3d
130, 134 (1st Cir. 2020). At bottom, the objection only needs to
be "sufficiently specific to call the district court's attention
to the asserted error." Id. (quoting Soto-Soto, 855 F.3d at 448
n.1).
Mercado clears this bar. Above and beyond the general
assertion that the court's sentence was "procedurally
unreasonable," Mercado's counsel alerted the court that "[t]he
[Guidelines] already considered that [the new charges are] a Grade
A violation and that he was on supervision for a Class A felony;
and this is a Grade A violation because, as considered by the
[G]uidelines, it involves a possession of a machine gun." This is
sufficiently specific notice to the sentencing court of Mercado's
belief that the court's articulated grounds for an upward variance
were already factored into the Guidelines sentencing range.
The procedural error claim was preserved. We thus review
its merits for abuse of discretion.
2. Procedural Error
To recap, "[a] court commits 'significant procedural
error' by 'failing to adequately explain the chosen sentence --
including an explanation for any deviation from the Guidelines
range.'" Melendez-Hiraldo, 82 F.4th at 54–55 (quoting Gall, 552
- 13 - U.S. at 51). When a sentence surpasses what the Guidelines
recommend, "'[the court] must justify the upward variance' by
'articulat[ing] why it believe[s] that the appellant's case
differ[s] from the norm.'" Id. at 55 (alterations in original)
(quoting Del Valle-Rodríguez, 761 F.3d at 176, 177). "[T]he
strength of the justification must increase proportionally with
the length of an upwardly variant sentence." United States v.
Perez-Delgado, 99 F.4th 13, 25 (1st Cir. 2024) (quoting
Reyes-Correa, 81 F.4th at 13).
On this measure, the district court's explanation fell
short. To see why, a review of the court's relevant statements at
the revocation hearing is helpful. The court first stated that it
"ha[d] taken into consideration the factors set forth in Title 18
United States Code Section 3553(a) and the seriousness of Mr.
Mercado's violations." It then noted that Mercado is charged with
violating 18 U.S.C. § 922(o), possession of a machinegun, and 18
U.S.C. § 922(g)(1), being a prohibited person in possession of a
firearm and ammunition "while serving a supervised release term
after having been convicted of violent offenses, a robbery in which
he threated a Ponce gas station attendant with a firearm and
brandishing the firearm in furtherance of the robbery." The court
found that "Mr. Mercado has shown that he is unable to comply with
the law or his conditions of supervision imposed by the [c]ourt."
It then provided the reasons for the sentence imposed: "To reflect
- 14 - the seriousness of the offense, promote respect for the law,
provide just punishment for Mr. Mercado's offense, afford adequate
deterrence, and to protect the public from additional crimes by
Mr. Mercado . . . ."
But nothing said here by the district court indicates
how Mercado's violation of supervised release case differs from
the mine-run of cases already contemplated by the Guidelines. See
Rivera-Berríos, 968 F.3d at 137 (Guidelines meant to apply to the
mine-run of specific crimes). While the district court's mention
of Mercado's past armed robbery of a Ponce gas station perhaps
suggested that it believed that, in light of Mercado's commission
of another gun-related offense, a variant sentence was necessary
to provide adequate deterrence and protect the public, the district
court did not explain why the Guidelines range did not adequately
account for those considerations or why they justified an upward
variance up to the maximum statutorily authorized sentence. See
United States v. Colón-Cordero, 91 F.4th 41, 54 (1st Cir. 2024)
("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.'" (quoting United States v.
Muñoz-Fontanez, 61 F.4th 212, 215 (1st Cir. 2023))).
- 15 - The rest of the district court's explanation also
provides no support for such a substantial upward variance. The
mere fact that Mercado was unable to comply with the law or his
supervised-release conditions, which is common to all revocations
of supervised release, cannot justify a deviation from the
recommended sentence. See Reyes-Correa, 81 F.4th at 11
(substantially identical remark during revocation "does not
explain the sentencing rationale or justify the upward variance").
Nor can the district court's recitation of now-familiar
boilerplate language. See id. at 10-11.
We do not conclude that an upward variance is
categorically unwarranted here, but the district court's
explanation for the variance was insufficient. We therefore vacate
Mercado's sixty-month revocation sentence and remand for
resentencing consistent with this opinion.
B. Section 922(o) Sentence
Regarding the § 922(o) sentence, Mercado takes issue
with the following grounds on which the district court upwardly
varied his sentence: (1) the dangerous nature of machineguns;
(2) the quantity of ammunition; (3) a policy disagreement with how
the Guidelines treat machineguns; and (4) unsupported statistics
regarding the prevalence of gun violence in Puerto Rico.
Although there is some dispute about which of these
issues were properly preserved for appeal and which were not, the
- 16 - parties agree that Mercado preserved at least his argument
regarding the amount of ammunition. Because we find that the
amount of ammunition at issue here (seventy-four rounds and two
extended magazines) is independently sufficient to support the
district court's 30% upward variance, we need not address the
preservation or merits of the other issues that Mercado raises.
"We have held repeatedly that the amount of ammunition
and the number of extended magazines . . . can be valid bases for
an upward variance for firearms offenses." United States v.
Polaco-Hance, 103 F.4th 95, 101 (1st Cir. 2024); see also United
States v. Bruno-Campos, 978 F.3d 801, 806 (1st Cir. 2020) ("Nothing
in . . . the [G]uideline provision . . . accounted for the
possession of . . . substantial quantities of ammunition[] and/or
multiple high-capacity magazines.").
Altogether, Mercado was found in possession of
seventy-four rounds of ammunition, fifty of which were encased in
two high-capacity magazines. We have previously upheld upward
variances where the district court relied on similar quantities of
ammunition and/or extended magazines. See, e.g., United States v.
García-Mojica, 955 F.3d 187, 189, 193 & n.7 (1st Cir. 2020) (two
high-capacity magazines and forty-seven rounds of ammunition
supported finding that "extra ammunition" was present which was
not fully taken into consideration by Guidelines); Bruno-Campos,
978 F.3d at 804, 806 (same regarding eighty-nine rounds across
- 17 - four magazines, two of which were high-capacity magazines). These
cases concern amounts of ammunition markedly different from the
amount at issue in Rivera-Berríos, on which Mercado relies, where
we held that thirty-six rounds of ammunition spanning two
high-capacity magazines was "entirely consistent with simple
possession of a machine gun." Rivera-Berríos, 968 F.3d at 135.3
Also distinguishable are United States v. García-Pérez,
9 F.4th 48 (1st Cir. 2021), and United States v.
Carrasquillo-Sánchez, 9 F.4th 56 (1st Cir. 2021), two other cases
on which Mercado depends.
In García-Pérez, we considered whether a 40%, or
twelve-month, upward variance to the top-end Guidelines sentencing
range of thirty months based on sixty-five rounds of ammunition
across three magazines, two of which were high-capacity, was
warranted. 9 F.4th at 53-54. We specifically noted that the
defendant there "had one more magazine and twenty-eight more rounds
than the defendant in Rivera-Berríos," but nonetheless concluded
that "the prudent course is to vacate [the upwardly variant
3Mercado attempts to analogize to Rivera-Berríos by pointing out that the defendant there was arrested alongside a companion who was found with two magazines together containing forty rounds, thereby suggesting that seventy-six rounds of ammunition are consistent with simple possession of a machinegun. But our conclusion that Rivera-Berríos was a "garden-variety machine gun possession case" was premised specifically on the thirty-six rounds attributed to the defendant only and did not rest on the amount of ammunition found on the other person arrested with him. See Rivera-Berríos, 968 F.3d at 132-33.
- 18 - sentence] and remand" for resentencing. Id. at 54. However, that
conclusion rested crucially on the fact that the sentence at issue
was imposed shortly before Rivera-Berríos was published and that
the district court's "exclusive reference to the magazines and
ammunition" were "the only [permissible] aggravating factors
supporting the variance." Id. at 55. We left the door open for
the district court to impose another upward variance based on the
amount of ammunition, now with the benefit of Rivera-Berríos,
warning only that the district court was not "free to vary upwards
even further, as nothing in Rivera-Berríos itself . . . provides
any basis for doing so." Id. Thus, in our view, García-Pérez is
unavailing.
Carrasquillo-Sánchez is even more readily
distinguishable. There, we vacated a 60%, or eighteen-month,
upward variance from the top end of the Guidelines sentencing range
of thirty months. 9 F.4th at 57-58. While the defendant there
possessed more than 100 rounds of ammunition, we concluded that
"nothing in the [d]istrict [c]ourt's summary of the facts and
weighing of the sentencing factors indicates that it relied for
its variant sentence on Carrasquillo's additional magazines and
ammunition." Id. at 62. Here, by contrast, the district court
clearly identified the amount of ammunition and the presence of
high-capacity magazines as sentencing rationales. We therefore
reasonably reject Mercado's suggestion that Carrasquillo-Sánchez
- 19 - countenances more than 100 rounds of ammunition as being consistent
with simple possession of a machinegun.
Thus, although "[n]o additional period of imprisonment
is insignificant to the incarcerated," we conclude that the
district court's approximately 30% upward variance is supportable
by the amount of ammunition at issue here. See Cordero-Velázquez,
124 F.4th at 57; see also Gall, 552 U.S. at 50 (reasoning that any
justification for a variance must be "sufficiently compelling to
support the degree of the variance"). This is particularly true
here because the district court's explanation is commensurate with
the magnitude of variance, as required. See Perez-Delgado, 99
F.4th at 25.4
We therefore find in the record sufficient grounds to
support the district court's twelve-month upward variance to
Mercado's § 922(o) sentence. We discern no procedural error here.
IV. Conclusion
For the foregoing reasons, Mercado's revocation sentence
of sixty months is vacated and remanded for resentencing consistent
with this opinion. Mercado's sentence of forty-eight months for
the § 922(o) charge for possessing a machinegun is affirmed.
4We are skeptical that this amount of ammunition would be sufficient, on its own, to justify a variance of a higher degree. But because that question is not before us, we need say no more about it today.
- 20 -