United States Court of Appeals For the First Circuit
No. 24-1834
UNITED STATES OF AMERICA,
Appellee,
v.
HECLOUIS JOEL NIEVES-DÍAZ,
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 Aframe, Circuit Judges.
Celso Javier Pérez Carballo, Assistant Federal Public Defender, with whom Rachel Brill, Federal Public Defender, and Franco L. Pérez-Redondo, Assistant Federal Public Defender, Supervisor, Appellate Unit, were on brief, for appellant.
Maarja T. Luhtaru, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Juan Carlos Reyes-Ramos, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.
April 14, 2026 AFRAME, Circuit Judge. During the execution of a search
warrant at the apartment where Heclouis Joel Nieves-Díaz was
residing, the Puerto Rico police found drugs, ammunition, and a
machine gun conversion device, which resulted in his guilty plea
to federal drug and firearm charges. Nieves received an
eighty-four-month prison sentence, which he successfully appealed.
On remand, the district court resentenced Nieves to sixty-six
months' imprisonment, which was twenty-five months above the top
of the new United States Sentencing Guidelines range ("GSR")
applicable to his second sentencing. Nieves appeals again,
arguing, among other things, that the district court failed to
adequately explain the basis for the upward variance. We agree
and therefore vacate the sentence.
I.
In 2013, Nieves pleaded guilty to conspiring to
distribute drugs, 21 U.S.C. §§ 841(a)(1), 846, and 860. As part
of that conspiracy, Nieves "possessed firearms while he was acting
as a seller for the [drug trafficking] organization." He received
an eighty-month prison sentence that was later reduced to
fifty-seven months. Nieves's sentence also included a term of
supervised release that was twice revoked for various violations,
including his failure to report to the probation office and his
use of controlled substances. Nieves's second revocation sentence
ended on May 15, 2020.
- 2 - Five months later, on October 13, 2020, Puerto Rico
police officers executed a search warrant at an apartment in San
Juan where Nieves was residing. Before executing the warrant,
officers observed apparent drug transactions occurring at the
apartment. During the search, the officers found, among other
items, approximately 149 rounds of .223 caliber ammunition in a
Ziploc bag in the kitchen; a machine gun conversion device, also
known as a "chip"; and approximately 849 small plastic baggies of
cocaine. As a result, Nieves was charged with and pleaded guilty
to (1) being a felon in possession of ammunition, 18 U.S.C.
§§ 922(g)(1) and 924(a)(2); (2) illegal possession of a part
designed to convert a semi-automatic weapon into a machine gun, 18
U.S.C. §§ 922(o) and 924(a)(2); and (3) possession with intent to
distribute cocaine, 18 U.S.C. § 841(a)(1), (b)(1)(C). Nieves was
on supervised release when he committed these crimes.
The presentence investigation report ("PSR") calculated
Nieves's total offense level to be twenty-three, his criminal
history to be category III, and his resulting GSR to be fifty-seven
to seventy-one months' imprisonment. The total offense level
resulted in part from the application of a four-level enhancement
under U.S.S.G. § 2K2.1(b)(6)(B), which applies "[i]f the
defendant . . . used or possessed any firearm or ammunition in
- 3 - connection with another felony offense."1 Id. At sentencing, the
government pressed for a mid-GSR sentence of sixty-six months'
imprisonment. As relevant here, Nieves objected to applying the
just-mentioned enhancement and sought a thirty-seven-month
sentence. The district court applied the enhancement, adopted the
PSR's proposed GSR, and sentenced Nieves to eighty-four months'
imprisonment, an upward variance of thirteen months.
Nieves appealed, and we vacated the sentence because the
district court erroneously applied the enhancement since there was
no basis for finding that the ammunition potentially facilitated
the drug trafficking offense. United States v. Nieves-Díaz (Nieves
I), 99 F.4th 1, 9 (1st Cir. 2024). We also cautioned that an
upward variance on remand would require either a "case-specific
explanation" or "explicit[] rel[iance] on . . . [a] policy
disagreement" with the sentencing guidelines. Id. at 10 n.3.
At resentencing, the amended PSR now calculated Nieves's
GSR as thirty-three to forty-one months' imprisonment based on a
total offense level of nineteen and a criminal history category of
II.2 The district court adopted the PSR's recommended GSR and
1 The November 1, 2023 edition of the Sentencing Guidelines manual was used to calculate Nieves's GSR. The enhancement for using or possessing a firearm in connection with another felony offense was later moved from § 2K2.1(b)(6)(B) to § 2K2.1(b)(7)(B). 2 The criminal history category decreased because Nieves no longer received criminal history points for committing the
- 4 - sentenced Nieves to sixty-six months' imprisonment, an upward
variance of twenty-five months, or approximately sixty-one percent
above the top of the applicable GSR.
In fashioning the sentence, the district court stated
that it had reviewed the amended PSR, this Court's opinion in
Nieves I, and the parties' sentencing memoranda and oral arguments.
It concluded that Nieves demonstrated a "pattern of conduct which
is representative of a lack of regard for the law" such that an
upward variance was warranted. In reaching this conclusion, the
court relied on Nieves's "criminal history, the large quantity of
ammunition he possessed and the [amount] of gun violence in the
community where . . . Nieves committed his offense."
Specifically, the court expressed additional concern about
Nieves's recidivism and "the speed with which he reoffends." And
it further noted that the apartment in which Nieves was arrested
had been used for drug trafficking. Regarding the ammunition, the
court referenced United States v. Polaco-Hance, 103 F.4th 95 (1st
Cir. 2024), and United States v. Gonzalez-Flores, 988 F.3d 100
(1st Cir. 2021), to support its view that the GSR did not account
adequately for the 149 rounds of ammunition at issue. Finally,
the court observed that the prevalence of gun crime in Puerto Rico
offense while on supervised release based on a subsequent guidelines amendment. See U.S.S.G. app. C, Amend. 821 (Supp. 2023).
- 5 - warranted a sentence that imposed "additional deterrence." Nieves
objected that the sentence was procedurally and substantively
unreasonable. He now appeals, requesting remand to another judge
for resentencing.
II.
We consider a sentencing challenge by first addressing
procedural reasonableness. United States v. Flores-Quiñones, 985
F.3d 128, 133 (1st Cir. 2021). "We review preserved challenges
[to a sentence] for abuse of discretion . . . ." United States v.
Cruz-Ramos, 987 F.3d 27, 44 (1st Cir. 2021). Nieves's claim of
procedural error rests on his contention that the district court
did not adequately justify or individualize the upward variance it
imposed based on the quantity of ammunition he possessed, his
criminal history, and the high gun-crime rate in Puerto Rico.
A district court's decision on whether to impose a
variance and the extent of any such variance is a judgment call
which we review for reasonableness. See United States v. Nelson,
793 F.3d 202, 207 (1st Cir. 2015). Our review requires that the
district court provides a sufficient explanation for its decision
so that we may determine whether the court's focus on a particular
aspect of the case was an appropriate variance consideration.
United States v. Pupo, 995 F.3d 23, 28 (1st Cir. 2021) (stating
that a sentencing court commits a procedural error by, inter alia,
"failing to adequately explain the chosen sentence -- including an
- 6 - explanation for any deviation from the [GSR]" (quoting United
States v. Díaz-Rivera, 957 F.3d 20, 25 (1st Cir. 2020))).
Here, the district court merged Nieves's past record,
the ammunition quantity, and the abundance of gun crime in Puerto
Rico to settle on a variance that was twenty-five months above the
top of the GSR. Because there is nothing in the sentencing record
to suggest otherwise, we assume that without the presence of one
of these factors, the court may have imposed a shorter sentence.
Accordingly, to review the variance decision, we require an
adequate explanation for why each of the reasons given was an
appropriate ingredient in the variance mix. Unfortunately, the
court's explanation for its reliance on the amount of ammunition
was too spartan to permit the necessary review.
Pertaining to ammunition amount, the district court
stated:
[T]he guideline range does not take into account the amount of ammunition that Mr. Nieves possessed, specifically 149 rounds of .223 caliber ammunition, for an assault rifle[.] [P]ursuant to the following cases: United States v. Polaco-Hance[,] 103 F.4th[] 95[,] and United States v. Gonzalez-Flores, 988 F.3d 100, a [s]entencing [c]ourt may consider the quantity of ammunition when determining an appropriate sentence especially, as in this case, [when] the guidelines do not account for the amount of ammunition[.]
On appeal, Nieves contends that his sentence was unjustified
because the court overlooked his primary argument that the
- 7 - ammunition posed no danger in the circumstances here because Nieves
did not possess a firearm.
While ammunition quantity may support an upward
variance, to rely on it, the district court must "clearly
identif[y] the amount of ammunition . . . as [a] sentencing
rationale[]" and ensure that the "explanation is commensurate with
the magnitude of variance." United States v. Mercado-Cañizares,
133 F.4th 173, 182-83 (1st Cir. 2025). "We have held repeatedly
that the amount of ammunition[,] . . . at least in a range
consistent with the amount . . . present in this case, can be [a]
valid bas[i]s for an upward variance for firearms offenses."
Polaco-Hance, 103 F.4th at 101 (involving 111 rounds of
ammunition). We have done so because "concerns about the
seriousness of such firepower and such substantial quantities of
ammunition . . . suffice[] to remove [a] case from the heartland
of the relevant guidelines." United States v.
Maldonado-Velazquez, 164 F.4th 154, 159 (1st Cir. 2026)
(alterations in original) (quoting United States v. Bruno-Campos,
978 F.3d 801, 806 (1st Cir. 2020)).
Some of our cases affirming an upward variance based on
the amount of ammunition have rested on the seriousness of the
firepower, or, otherwise stated, the dangerousness posed by the
additional rounds in the circumstances presented. See, e.g.,
United States v. García-Mojica, 955 F.3d 187, 193 (1st Cir. 2020)
- 8 - (stating that extra ammunition "contributed to the lethalness of
the automatic weapon"); United States v. Contreras-Delgado, 913
F.3d 232, 243 (1st Cir. 2019) (noting a "substantial amount of
ammunition and multiple high-capacity magazines[] heighten[ed] the
risk posed to the public"). Others center instead on the district
court's finding that there were substantial quantities of
ammunition, see, e.g., United States v. Morales-Vélez, 100 F.4th
334, 344 (1st Cir. 2024), or on its discussion of "specific
features of the ammunition," United States v. Santa-Otero, 843
F.3d 547, 550 (1st Cir. 2016) (involving loaded magazines). In
each case, regardless of the district court's rationale, the
defendant also possessed a firearm. Thus, Nieves's case presents
a novel circumstance in which a substantial quantity of ammunition
was found without a corresponding firearm.
Nieves contends the district court ignored his
"principal argument" that the lack of a corresponding firearm means
that the ammunition was not dangerous in the circumstances of his
case. The district court, in explaining the sentencing rationale,
did not address Nieves's argument specifically or even describe
more generally what aspect of the ammunition quantity motivated it
to view quantity as a variance factor. See United States v. Colón-
Cordero, 91 F.4th 41, 56 (1st Cir. 2024) (requiring district court
to engage with defendant's "dominant" argument at sentencing). In
particular, the court did not explain whether it was the
- 9 - ammunition's potential danger, the sheer amount of ammunition, or
some other case-specific factor about the ammunition's presence
that helped remove the case from the guidelines' heartland. "Given
the marked extent of the variance, we are reluctant to guess at
what the court was thinking," especially where there are multiple
possibilities that could lead to different reasonableness
analyses. United States v. Montero-Montero, 817 F.3d 35, 38 (1st
Cir. 2016). Because we cannot discern the court's reason for
relying on ammunition amount as a variance factor, we conclude
that there was a procedural error in Nieves's sentencing. See id.
In reaching this conclusion, we do not accept Nieves's
argument that Nieves I prohibits the district court from relying
on ammunition amount as a possible upward variance consideration.
To support his view, Nieves refers to our conclusion in his earlier
appeal that the government did not show the ammunition's role in
facilitating his drug trafficking offense. See Nieves I, 99 F.4th
at 8-9. But Nieves overreads our prior decision. We considered
there only whether the court correctly applied a four-level
enhancement under U.S.S.G. § 2K2.1(b)(6)(B). Id. at 7-10. We did
not address whether an upward variance could be justified, in part,
because of the ammunition quantity involved in the offense.
Similarly, our holding here should not be read to express a view
on whether a court reasonably could view the ammunition amount as
a variance factor in the circumstances of this case. We hold only
- 10 - that the district court failed to identify the reason that
ammunition quantity represented an aggravating factor in this
circumstance, where there was no compatible firearm, and that
omission precludes us from reviewing its determination for
reasonableness.
We recognize that our conclusion about the district
court's inadequate explanation about ammunition quantity means
that we must send this case back for a third sentencing hearing.
To simplify matters on remand, we address Nieves's argument that
the district court improperly relied on his criminal history as
one of the variance considerations.
At resentencing, the district court explained its basis
for relying on Nieves's prior record to enhance his sentence. It
noted that Nieves reoffended while serving a term of supervised
release that had already been twice-revoked; that he was arrested
"mere months" after being released; that his "prior offenses
involved both the selling [of drugs] and the possession of
firearms";3 and that his history demonstrated a "pattern of drug
trafficking and weapons offenses."
To challenge the district court's reliance on his prior
record, Nieves first disputes that he has a history of drug and
3 After a colloquy with the prosecutor, the court agreed with the government that Nieves sold drugs and possessed firearms, and that he had not sold firearms.
- 11 - firearms offenses. He admits, however, that he has a prior federal
drug conviction and that he possessed firearms during that offense.
Nieves now contends that the court "appeared to believe"
incorrectly that he previously had been convicted of a firearms
offense. But we do not see any indication of such a mistake from
our own review. And even if we accept that the court erroneously
thought Nieves had a prior firearms conviction, we fail to see
prejudice from any misunderstanding given that firearm possession
was relevant conduct for Nieves's past drug-trafficking
conviction. In either case, the court was justified in having
concern about Nieves possessing firearms while engaging in drug
trafficking, which we understand to be the court's rationale for
relying on his prior offense. See, e.g., United States v.
Bermúdez-Meléndez, 827 F.3d 160, 164 (1st Cir. 2016) (noting that
it "ma[d]e matters worse" that a defendant possessed firearms "in
close proximity to a trove of illegal drugs").
Next, Nieves contends that the district court overstated
the importance of his supervised release violations because these
violations were merely "technical" in nature (e.g., violating the
restriction on drug use and the requirement that he report to the
probation officer as directed). We reject that view. The court
appropriately expressed concern that Nieves presented an
"unreasonably high" likelihood of recidivism, based on "the speed
with which he reoffends." That concern is justified regardless of
- 12 - how Nieves chooses to characterize his supervised release
violations. Nieves knew the supervised release restrictions
placed on him and did not follow them. That presents a concern
that Nieves will recidivate, which can support an upward variance.
See United States v. Fargas-Reyes, 125 F.4th 264, 274-76 & n.16
(1st Cir. 2025) (affirming thirty-three-month upward variance
where defendant possessed large amounts of ammunition just three
months after leaving prison on supervised release for a previous
machine gun offense); Polaco-Hance, 103 F.4th at 102 ("[A] district
court does not abuse its discretion by imposing an upward variance
for repeated criminal activity that occurs shortly into an
individual's supervised release term.").4 We therefore conclude
that, on remand, the district court may reasonably rely on Nieves's
prior record as a consideration in any variance calculus.5
4 Nieves also makes an argument that, even if his prior record is a relevant consideration, it does not support the extent of the variance imposed. Because we are vacating the sentence and do not know whether the court will impose a variance or, if it does, the length of any such variance, we do not consider this argument today. 5 Concerning the district court's reliance on community factors, we note that a district court may "emphasize[] community factors" so long as it does not come "at the expense of also weighing the specific circumstances of [the defendant's] case." Polaco-Hance, 103 F.4th at 103 (quoting, in part, United States v. Zapata-Vázquez, 778 F.3d 21, 24 (1st Cir. 2015)). In looking to community factors in otherwise appropriate circumstances, a court is not required to find that a defendant personally contributed to actual violence in the community. See United States v. Flores-Machicote, 706 F.3d 16, 23 (1st Cir. 2013) ("[T]he incidence
- 13 - III.
Nieves makes two closing requests. First, he asks that
we also address his substantive reasonableness arguments and
remand with instructions limiting the upward variance to thirteen
months. Second, he contends that we should remand his case to a
different judge for resentencing. We decline both requests.
In making his first request, Nieves acknowledges that we
ordinarily address procedural reasonableness before substantive
reasonableness. He nevertheless asserts that a "proper remedy"
here would entail addressing both reasonableness prongs. Nieves,
however, does not offer, and we do not see, any reason why we
should evaluate the substantive reasonableness of the vacated
sentence. See, e.g., United States v. Carrasquillo-Sánchez, 9
F.4th 56, 62-63 (1st Cir. 2021) (remanding after finding procedural
error).
Nor would it be appropriate to remand with instructions
to cap the possible sentence in these circumstances. That is
because generally "[s]entencing is the province of the district
court," not this Court. United States v. Helton, 782 F.3d 148,
151 (4th Cir. 2015). Instructing a district court on remand to
impose a specific sentence is an "extraordinary" remedy that
"deprive[s] the trial court of its discretion in sentencing."
of particular crimes in the relevant community appropriately informs and contextualizes the relevant need for deterrence.").
- 14 - United States v. Mojica-Ramos, 103 F.4th 844, 854 (1st Cir. 2024)
(quoting United States v. Kurkculer, 917 F.2d 295, 299 (1st Cir.
1990)). We think that remanding with instructions about the upper
limit on the sentence similarly hobbles the district court's
exercise of discretion. As we have discussed supra, we are not
precluding the possibility that the court could impose a variance
similar in length to the one on review here; we are holding only
that the court did not adequately explain its basis for doing so.
Cf. United States v. Rivera-Berríos, 968 F.3d 130, 137 (1st Cir.
2020) (limiting sentence on remand to be within the GSR where "the
record reveals no circumstance that could justify an upwardly
variant sentence").
Finally, we do not order the reassignment of the case.
Because "[i]t has long been regarded as normal and proper for a
judge to sit in the same case upon its remand," Yosd v. Mukasey,
514 F.3d 74, 78 (1st Cir. 2008) (alteration in original) (quoting
Liteky v. United States, 510 U.S. 540, 551 (1994)), requests to be
resentenced by a different judge are granted "only in very unusual
cases." United States v. Vázquez-Méndez, 915 F.3d 85, 88 (1st
Cir. 2019). These rare cases can occur when the original judge
(1) based the sentence on unreliable or inaccurate information or
(2) displayed entrenched bias. See Colón-Cordero, 91 F.4th at 58;
United States v. Castillo-Torres, 8 F.4th 68, 73 (1st Cir. 2021).
This case does not involve either consideration.
- 15 - Nieves contends that the district court would have
difficulty putting aside his previous views on the case because
the judge was erroneously fixated on the dangerousness of
machineguns during both earlier sentencing hearings. But the
comments made by the district court did not rely on "off-record
evidence" or incorrectly assess the facts such that reassignment
would be warranted. See United States v. Alvira-Sanchez, 804 F.3d
488, 496 (1st Cir. 2015). Rather, they appear to be the kind of
judicial rulings or opinions that alone do not suggest bias or
partiality. See id. (explaining that district court's discussion
of case-specific factors did not evince bias); cf. Liteky, 510
U.S. at 555 (involving judicial recusal).
As Nieves recognizes through his own citations, in cases
where a sentencing judge fails to sufficiently explain an upward
variance, we typically remand without reassignment. See, e.g.,
United States v. Muñoz-Fontanez, 61 F.4th 212, 215 (1st Cir. 2023).
This is a typical case, and so we decline to order reassignment.
IV.
For the reasons stated, we vacate the sentence. The
case is remanded for further proceedings consistent with this
opinion.
- 16 -