United States Court of Appeals For the First Circuit
Nos. 24-1841, 24-1842
UNITED STATES,
Appellee,
v.
REYNALDO ROSA-BORGES,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Barron, Chief Judge, Montecalvo and Rikelman, Circuit Judges.
Jessica E. Earl, with whom Rachel Brill, Federal Public Defender, District of Puerto Rico, Franco L. Pérez-Redondo, Assistant Federal Public Defender, Supervisor, Appellate Division, and Kevin E. Lerman, Assistant Federal Public Defender, were on brief, for appellant. Ricardo A. Imbert-Fernández, 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.
May 1, 2026 RIKELMAN, Circuit Judge. These two sentencing appeals
are back at our Court for a second time. See United States v.
Rosa-Borges (Rosa I), 101 F.4th 66 (1st Cir. 2024). Once again,
Reynaldo Rosa-Borges challenges both of his sentences on multiple
grounds. In this chapter, we affirm Rosa's1 revocation sentence
for violating the terms of his supervised release because he has
waived his challenges to that sentence. We conclude, however,
that the district court relied on a legally invalid rationale in
sentencing Rosa for his new conviction under 18 U.S.C. § 922(g)(1)
and thus vacate and remand for resentencing in that case.
I. BACKGROUND
We recap the key facts, drawing "from the uncontested
parts of the probation officer's presentence investigation report
(PSR), the plea agreement, and the transcripts of the sentencing
and revocation hearings." Rosa I, 101 F.4th at 68-69 (citation
modified).
In February 2015, Rosa pleaded guilty to possessing a
firearm in furtherance of a drug trafficking crime in violation of
18 U.S.C. § 924(c). The district court ultimately sentenced him
to five years in prison followed by five years of supervised
release.
1 We refer to the appellant as "Rosa," consistent with his brief and Spanish naming customs.
- 2 - After completing his prison sentence in May 2019, Rosa
began serving his supervised release term. In November 2019, the
probation officer notified the district court that Rosa had
violated the terms of his supervised release by possessing
controlled substances and altering a urine sample. The court
"granted an action plan" and allowed his supervision to continue.
In October 2020, the probation officer notified the court that
Rosa had admitted to unlawful use of controlled substances, and
the court modified the conditions of supervision "to include mental
health treatment, to mitigate the risk behavior, and afford needed
social services."
On March 29, 2021, while Rosa was still on supervised
release for his 2015 conviction, he ran into trouble again. Police
officers patrolling a beach saw him and another individual sitting
in the back of an SUV, under its open trunk door, with a firearm
in reach inside the trunk. The officers detained both men and
seized from the SUV a loaded 7.62 caliber Norinco "AK-type pistol"
and other items, including an ammunition magazine containing 30
rounds of 7.62 caliber ammunition. The next day, March 30,
officers conducted a search at the house where Rosa lived with his
aunt. The search yielded two rifle magazines loaded with 59 rounds
of 7.62 caliber ammunition, collectively, and 41 loose rounds of
identical ammunition (100 rounds total). During the search, Rosa's
brother claimed that any items seized in the house belonged to
- 3 - Rosa. In short order, Rosa's probation officer notified the
district court that Rosa had violated the terms of his supervised
release by possessing the gun and ammunition on March 29 and 30.
Based on these events in late March 2021, a grand jury
eventually indicted Rosa for possession of a firearm by a
prohibited person in violation of 18 U.S.C. § 922(g)(1). Rosa
pleaded guilty to this new criminal conduct pursuant to a plea
agreement and stipulated that he "knowingly possess[ed] . . . a
7.62 caliber Norinco rifle-style pistol . . . loaded with a bullet
in the chamber and an ammunition magazine containing 30 rounds of
7.62 caliber ammunition."
Before the original sentencing hearings in 2021 for
Rosa's new § 922(g)(1) conviction and the supervised release
violations, the probation officer submitted a PSR. Paragraph 13
of the PSR described the March 30 search that yielded the 100
rounds of ammunition and explained that a family member reported
that the ammunition belonged to Rosa. The district court relied
on that information at both of Rosa's sentencing hearings,
including to impose an upwardly variant sentence on the § 922(g)(1)
charge.
Rosa appealed both sentences. See Rosa I, 101 F.4th at
73. We held that the statement by Rosa's brother attributing
ownership of the 100 rounds of ammunition to Rosa was "unreliable
hearsay" and that the district court erred in relying upon it.
- 4 - Id. at 80. Thus, we vacated Rosa's sentences and remanded for
further proceedings consistent with our opinion. See id.
Back at the district court, Rosa's resentencing hearings
took place in August 2024. At the § 922(g)(1) resentencing
hearing, Rosa "request[ed] that the PSR be amended in order to
delete paragraph 13 in accordance with" our decision because that
paragraph included the statement by Rosa's brother that we had
held was unreliable. The court denied that request.
The district court then proceeded to impose its sentence
for the § 922(g)(1) violation. It agreed with the government's
calculated United States Sentencing Guidelines range of 33 to 41
months. It then explained that it found an above-guidelines
sentence necessary to "reflect[] the seriousness of Mr. Rosa's
offense, promote[] respect for the law, protect[] the public from
additional crimes by Mr. Rosa, and address[] the issues of
deterrence and punishment." The court provided three
justifications for its upward variance: (1) "Puerto Rico's high
firearms and violent crime rate," (2) the "high amount of
ammunition" and "the type of ammunition" possessed by Rosa, and
(3) that "this is Mr. Rosa's second firearms offense." As to the
second justification, the court noted that Rosa possessed "the
type of ammunition used by NATO countries for firearms of war."
It then sentenced Rosa to 60 months in prison. Rosa promptly
objected to the sentence as procedurally and substantively
- 5 - unreasonable; in objecting, he emphasized that 31 rounds was not
"a high amount of ammunition" and that "the reference to firearms
of war [was] unsubstantiated on the record."
Later that same morning, the district court held the
resentencing hearing for Rosa's supervised release violations.
The court determined that Rosa had committed a Grade A violation
of his supervised release terms by possessing the "AK-type pistol."
It reached this conclusion because Rosa's "conduct [of possessing
the AK-type pistol] constitute[d] a new criminal offense that [was]
punishable by a term of imprisonment exceeding 20 years" under the
Puerto Rico Weapons Act of 2020. As a result, the court calculated
the Sentencing Guidelines range to be 24 to 30 months in prison.
It then decided that "a sentence at the low end of the guideline
range [was] a sentence sufficient but not greater than necessary
in this case" to "afford adequate deterrence to criminal conduct
and to protect the community from Mr. Rosa's illegal behavior."
In the end, the court sentenced Rosa to 24 months in prison for
violating the terms of his supervised release, to be served
consecutively to his § 922(g)(1) sentence. Rosa immediately
unreasonable and singled out the court's Grade A determination,
but the court overruled his objections.
Rosa again appealed both sentences.
- 6 - II. STANDARD OF REVIEW
In analyzing Rosa's sentencing challenges, we evaluate
preserved claims under "a multifaceted abuse-of-discretion
standard." United States v. Aponte-Colón, 104 F.4th 402, 414 (1st
Cir. 2024) (quoting United States v. Sierra-Jiménez, 93 F.4th 565,
569 (1st Cir. 2024)). Under that umbrella standard, "we review
the sentencing court's findings of fact for clear error and
questions of law . . . de novo." Id. at 415 (quoting United States
v. Carrasquillo-Vilches, 33 F.4th 36, 41 (1st Cir. 2022)). By
contrast, we review any unpreserved claims under the plain error
standard. See United States v. Morales-Ortiz, 152 F.4th 31, 44
(1st Cir. 2025). To prevail under the demanding plain error test,
Rosa must show: "(1) that an error occurred (2) which was clear or
obvious and which not only (3) affected [his] substantial rights,
but also (4) seriously impaired the fairness, integrity, or public
reputation of judicial proceedings." United States v.
Cheveres-Morales, 83 F.4th 34, 42-43 (1st Cir. 2023) (quoting
United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).
Under our "well established" "two-step framework," we
first evaluate whether each sentence is procedurally reasonable
and then analyze Rosa's substantive challenges, if needed. United
States v. Colón-Cordero, 91 F.4th 41, 48 (1st Cir. 2024).
- 7 - III. DISCUSSION
Rosa challenges both his § 922(g)(1) sentence and his
revocation sentence. As we will explain, we vacate Rosa's
§ 922(g)(1) sentence because the district court partially relied
on a legally invalid rationale to justify its upward variance. We
affirm Rosa's revocation sentence, however, because he has waived
his arguments challenging that sentence.
A. Section 922(g)(1) Resentencing
Rosa raises two primary procedural challenges to the
district court's decision to impose an upward variance and sentence
him to 60 months in prison on his § 922(g)(1) charge. He claims
that the district court (1) violated our mandate in Rosa I and
(2) failed to justify or individualize the upward variance it
imposed. He also contends that the sentence is substantively
unreasonable and that the government breached the plea agreement.
1. Mandate Rule
In Rosa I, we held that Rosa's brother's statement, set
out in paragraph 13 of the PSR, was "unreliable hearsay" and, thus,
the district court could not rely on it during sentencing. 101
F.4th at 80. Rosa claims that the district court ignored our
mandate from Rosa I by maintaining paragraph 13 in the PSR
and relying on that information again at his resentencing. We
disagree.
- 8 - Under the so-called "mandate rule," a district court
must follow the decision of an appeals court and "conform with
[its] direction[] . . . on remand." Cheveres-Morales, 83 F.4th at
40 (quoting United States v. Dávila-Félix, 763 F.3d 105, 109 (1st
Cir. 2014)).2 In doing so, a district court "must implement both
the letter and the spirit of the mandate, taking into account [our]
opinion and the circumstances it embrace[d]." United States v.
Genao-Sánchez, 525 F.3d 67, 70 (1st Cir. 2008) (quoting United
States v. Connell, 6 F.3d 27, 30 (1st Cir. 1993)).
At his resentencing, Rosa requested "that the PSR be
amended in order to delete paragraph 13 in accordance with the
opinion and order issued [in Rosa I]." The government responded
that it understood Rosa I to prohibit the district court from
"rely[ing] solely upon that in imposing an upward variance."
(Emphasis added.) The court acknowledged that it "underst[ood]"
the meaning of Rosa I, but that its inquiry was whether it should
"eliminate that paragraph." Rosa again urged the court to strike
paragraph 13, but the court denied his request.
Because Rosa preserved his objection to including
paragraph 13 in the PSR, we review de novo the district court's
2 The mandate rule is one "branch" of the "law of the case doctrine." United States v. Genao-Sánchez, 525 F.3d 67, 69-70 (1st Cir. 2008). The other "branch, not implicated here, deals with when a legal determination made by a court in a civil or criminal case establishes the law of that case throughout the balance of litigation in that court." Id.
- 9 - ruling on this issue. See Genao-Sánchez, 525 F.3d at 69
(explaining that the "interpretation of [a] mandate . . . . is a
quintessentially legal question"); see also United States v.
Matthews, 643 F.3d 9, 13 (1st Cir. 2011) ("Whether the [law of the
case] doctrine applies in a specific instance is a question of
law, engendering de novo review."). In doing so, we must "parse
the operative language of our prior opinion to discern the contours
of its mandate." Genao-Sánchez, 525 F.3d at 70.
Nothing in our prior opinion required the district court
to amend the PSR on remand. See Rosa I, 101 F.4th 66. We noted
in our decision that "the district court denied Rosa's request to
remove paragraph 13 from the PSR." Id. at 76. But we did not
require the court to strike paragraph 13 at resentencing. Our
decision focused on how the court used the information in the PSR,
not the PSR itself; and, of course, it is well-established that "a
district court is not required to agree with the PSR." United
States v. Acevedo-Osorio, 118 F.4th 117, 140 (1st Cir. 2024).
Thus, neither the "letter" nor the "spirit" of our opinion, see
Genao-Sánchez, 525 F.3d at 70 (quoting Connell, 6 F.3d at 30),
required the court to strike paragraph 13 from the PSR on remand,
so long as it did not rely on paragraph 13 to impose an upwardly
variant sentence.
We now consider the heart of Rosa's mandate argument: He
contends that the district court again relied on his brother's
- 10 - statement when it resentenced him, despite our opinion in Rosa I.
Because Rosa did not raise this claim at the resentencing hearing
itself, we must review it for plain error only. See
Cheveres-Morales, 83 F.4th at 42. But the government contends
that Rosa waived this claim entirely by failing to brief the plain
error standard on appeal. Even if we were to ignore this briefing
oversight, Rosa's challenge fails under the demanding plain error
standard. See United States v. Burgos-Balbuena, 113 F.4th 112,
121 n.6 (1st Cir. 2024) (bypassing waiver because the claim failed
under plain error review).
For Rosa to satisfy the first prong of the plain error
test, he must demonstrate that an error occurred. See
Cheveres-Morales, 83 F.4th at 43. Thus, he must show that, at
resentencing, the district court again relied on the "unreliable
hearsay" in paragraph 13. But the record contradicts Rosa on this
point. In pronouncing its sentence on remand, the court stated
that it had "considered . . . [our] opinion" and noted that Rosa
"possessed 31 rounds of ammunition." To underline this point, the
court expressly clarified that it was "only taking into
consideration the 31 rounds that [Rosa] had, not the 100 rounds
that the Court of Appeals indicated . . . [were] not reliable."
The court's statements about what it considered in imposing a
sentence are "entitled to significant weight." United States v.
López-Felicie, 109 F.4th 51, 59 (1st Cir. 2024) (quoting United
- 11 - States v. Santiago-Rivera, 744 F.3d 229, 233 (1st Cir. 2014))
(giving "significant weight" to the district court's statement
that it "considered the relevant factors under 18 U.S.C.
§ 3553(a)").
Rosa nevertheless argues that the district court's
statements that it did not rely on his brother's hearsay cannot be
"square[d] . . . with the record as a whole." See United States
v. Rivera-Ruiz, 43 F.4th 172, 183-84 (1st Cir. 2022) (finding the
district court impermissibly relied on certain information because
its treatment of the information "exceeded" a mere "passing
reference" (citation modified)). But he offers only one data point
to support this argument: the court's reference on remand to "a
high-quantity of ammunition." According to Rosa, this comment
must have meant that the court was considering the other 100 rounds
of ammunition. The court's statement in full, however, was:
"[Rosa] possessed 31 rounds of ammunition, and the Court of Appeals
has indicated that the possession of a high amount of ammunition
may be considered by the [c]ourt to impose [a] sentence."3 This
statement, in the context of the entire resentencing hearing, is
Rosa raises a separate challenge to this statement, arguing 3
that 31 rounds of ammunition is not a "high amount of ammunition" under our precedent. We take up this argument below. See infra Section III.A.2.
- 12 - not enough to make us "doubt [the district court's] word" that it
was following our mandate. Santiago-Rivera, 744 F.3d at 233.
Thus, Rosa's procedural challenge on this ground fails.
2. Sentencing Rationale
The district court provided three rationales for its
upwardly variant § 922(g)(1) sentence: (1) "Puerto Rico's high
firearms and violent crime rate"; (2) Rosa's "possession of a high
amount of ammunition" along with "the type of ammunition"; and
(3) that "this is . . . Rosa's second firearms offense." Rosa
argues that the court did not adequately explain how the first two
considerations applied to him and that the third factor alone
cannot justify the upward variance.
Before diving into the merits of Rosa's arguments, we
identify some "guiding principles." Aponte-Colón, 104 F.4th at
416. "[A]t the time of sentencing," the district court must "state
in open court the reasons for its imposition of the particular
sentence." 18 U.S.C. § 3553(c). This explanation "must
demonstrate that [the court] conducted an individualized
assessment of the [sentencing] factors based on the facts
presented" in that case. Aponte-Colón, 104 F.4th at 416 (citation
modified). A sentencing court "has the authority to vary upward
from a properly calculated guideline sentencing range . . . if
some special characteristic attributable either to the offender or
to the offense of conviction serves to remove [the] case from the
- 13 - mine-run." United States v. Rivera-Berríos, 968 F.3d 130, 137
(1st Cir. 2020). If the district court so varies, it must explain
why the case is not in the "mine-run," meaning it must "justify"
its decision by "explain[ing] why it deems the defendant's case
different from the norm." Aponte-Colón, 104 F.4th at 416.
We start and end our analysis with the district court's
second rationale for its upward variance, which we find legally
invalid and dispositively so. The court justified its upward
variance, in part, because Rosa possessed 31 rounds of ammunition,
which it described as "a high amount." Rosa challenges this
analysis as "procedurally unreasonable because 31 rounds is not
out of the ordinary" under our caselaw.
"Our precedent is clear that sentencing courts may
consider the amount of ammunition to be an aggravating factor, one
not already accounted for by the guidelines, if the amount exceeds
what is consistent with simple possession." United States v.
Morales-Vélez, 100 F.4th 334, 344 (1st Cir. 2024) (citing United
States v. Rivera-Santiago, 919 F.3d 82, 85-86 (1st Cir. 2019))
(affirming district court's decision to vary upward based on a
large amount of ammunition). Our precedent is also clear, however,
that 31 rounds of ammunition is "entirely consistent with simple
- 14 - possession of a machine gun,"4 meaning that this amount of
ammunition alone cannot justify an upward variance.
Rivera-Berríos, 968 F.3d at 133, 135 (holding that 36 rounds was
not a "large cache of ammunition"). Indeed, the government
concedes that the amount of ammunition here is not enough on its
own to take this case outside the mine-run under the holding of
Rivera-Berríos. Thus, there is no dispute that the district
court's conclusion on this issue was inconsistent with our caselaw.
To the extent that the district court determined that 31
rounds of ammunition was a "high amount" because it was "the type
of ammunition used by NATO countries for firearms of war," we still
conclude that a procedural error occurred. There was no evidence
in the record before the district court to support its finding
about "the type of ammunition." Thus, that finding was clearly
erroneous. See United States v. Cotto-Negrón, 845 F.3d 434, 438-39
(1st Cir. 2017) (holding that district court's factual finding at
sentencing constituted "clear error" because there was "no basis
in the record for the court's conclusion"); see also Morales-Vélez,
100 F.4th at 345 (agreeing that an upwardly variant sentence "could
not be based on the type of bullets [the defendant] possessed, as
4 We note that Rosa did not possess a machine gun but rather a "semi-automatic firearm that [was] capable of accepting a large-capacity magazine." The government has not argued that this distinction should make a difference in how we evaluate the amount of ammunition at issue here.
- 15 - there [was] no evidence in the record that [the] bullets [were]
'more lethal, dangerous, or inhumane than other ordinary
commercially available bullets'").
We must still consider, however, if the error was
harmless "on the record as a whole," meaning "that the error did
not affect the district court's selection of the sentence imposed."
Williams v. United States, 503 U.S. 193, 203 (1992) (citing Fed.
R. Crim. P. 52(a)); see also United States v. Tavares, 705 F.3d 4,
25 (1st Cir. 2013) ("We routinely apply Williams's harmless-error
analysis to procedural errors at sentencing."). If we are not
convinced that the error was harmless, we must vacate and remand.
Williams, 503 U.S. at 203.
A procedural error like the one here is harmless only if
we can conclude that the sentencing court "inevitably" would have
imposed the same sentence "based solely on" the other rationales
it cited. United States v. Diaz, 285 F.3d 92, 98 (1st Cir. 2002).
The record does not give us any "assurance" that the district court
"inevitably" would have selected the same sentence for Rosa if it
had put the amount and type of ammunition involved to the side.
See id. at 98-99. To the contrary, the court discussed the
community conditions in Puerto Rico, the "high" amount and type of
ammunition, and that this conviction was Rosa's second firearm
offense and imposed its sentence "[b]ased on all those facts."
- 16 - (Emphasis added.) Thus, we hold that the error was not harmless,
requiring us to vacate Rosa's § 922(g)(1) sentence.5
In remanding for resentencing on Rosa's § 922(g)(1)
conviction, we may order any further proceedings that are "just
under the circumstances." 28 U.S.C. § 2106. We conclude that
remanding to a different judge would be just because the district
court relied on "non-record" facts about the type of ammunition to
impose an upward variance, "without identifying the source [of
those facts] or providing notice" to Rosa that it would consider
such facts "in determining his sentence." United States v.
Ramos-Carreras, 59 F.4th 1, 7-8 (1st Cir. 2023) (vacating a
criminal sentence and remanding to a different judge for
resentencing because the district court justified its upward
variance with "extra–record allegations"); see also United States
v. Craven, 239 F.3d 91, 103 (1st Cir. 2001) (remanding to a
different judge because the sentencing judge relied on "ex parte
communications . . . not . . . tested through the adversary
process . . . [with] no trace in the record" (citation modified));
Colón-Cordero, 91 F.4th at 58 (citing cases).
5The district court's reliance on a legally invalid rationale justifies vacating Rosa's § 922(g)(1) sentence. Thus, we end our analysis there and do not consider the other arguments lodged by Rosa against that sentence. See Colón-Cordero, 91 F.4th at 58 (vacating and remanding based on a procedural error and therefore "leav[ing] untouched and intimat[ing] no view on [the defendant's] other appellate challenges to his sentences").
- 17 - 3. Breach of Plea Agreement Claim
Rosa also argues that the government breached the plea
agreement when it "misrepresent[ed] [Rosa I's] mandate and
insist[ed] on retaining discredited information" in the PSR during
his § 922(g)(1) resentencing. Consistent with our precedent, he
requests that we remand to a different judge if we agree that the
government breached the plea agreement; he does not ask to withdraw
his plea. See United States v. Kurkculer, 918 F.2d 295, 300 (1st
Cir. 1990). Because the only remedy Rosa seeks for his plea breach
claim is resentencing before a different judge on his § 922(g)(1)
conviction, and we already granted that remedy in light of the
procedural errors that occurred, we need not decide this claim.
Cf. Rosa I, 101 F.4th at 74 (citing United States v. Clark, 55
F.3d 9, 14 (1st Cir. 1995)) (addressing "Rosa's plea-breach claim
to determine whether [he] [was] entitled to resentencing by a
different judge").
We do emphasize, however, that we disagree with the
government's interpretation of Rosa I. In that decision, we made
it abundantly clear that the statement by Rosa's brother was
unreliable and could not be used to support an upward variance.
See id. at 79. Unreliable information cannot be used at
sentencing, full stop. Thus, the government was wrong to argue to
the district court that it could not "rely solely" on that
information in resentencing Rosa. (Emphasis added.)
- 18 - B. Revocation Resentencing
We turn next to Rosa's challenge to his revocation
sentence. "To guide the [revocation] sentencing decision, the
United States Sentencing Guidelines set three grades of supervised
release violations." United States v. Colón-Maldonado, 953 F.3d
1, 3 (1st Cir. 2020). A Grade A violation -- the highest
grade -- includes "conduct constituting . . . [a] federal, state,
or local offense punishable by a term of imprisonment exceeding
twenty years." U.S Sent'g Guidelines Manual § 7B1.1(a)(1)(B)
(U.S. Sent'g Comm'n 2023).6
At the revocation sentencing, the district court
determined that Rosa committed a Grade A violation because he
"engaged in conduct that violate[d] Article 2.16 of the Puerto
Rico Weapons Law of 2020" and that "[a]ny person who violates
Article 2.16 shall be punishable by imprisonment for a fixed term
of 24 years." See P.R. Laws Ann. tit. 25, § 462o (prohibiting the
unlicensed possession of semiautomatic assault weapons). Rosa
immediately objected to the sentence "as both procedurally and
substantively unreasonable."
Rosa vociferously contested the district court's Grade
A determination, claiming that the "Puerto Rico statute . . . is
unconstitutionally vague" and "in violation of his Second
We apply the Sentencing Guidelines that were in place at 6
the time of Rosa's resentencing.
- 19 - Amendment rights." He also argued that "the sentence imposed [was]
excessive" because the parties' plea negotiations "proceeded under
the . . . understanding" that his supervised release violation
would be scored as Grade B.7 But, at the same time, Rosa readily
admitted that he was aware that any such negotiations by the
parties were "not binding" on the court. The court overruled his
objections.
In his opening brief on appeal, Rosa challenges his
revocation sentence as procedurally unreasonable. He argues
that (1) he did not receive the requisite "written notice of the
alleged [Grade A] violation" pursuant to Federal Rule of Criminal
Procedure 32.1(b)(2)(A); (2) the government did not prove by
reliable evidence that he engaged in conduct violating Article
2.16; and (3) the parties negotiated a Grade B violation, which
induced Rosa to plea. He makes all these arguments in fewer than
three pages of his brief.
In response, the government contends that Rosa did not
preserve these claims, and thus, at best, they must be subject to
plain error review. See United States v. Alejandro-Rosado, 878
F.3d 435, 438-39 (1st Cir. 2017). It also insists that because
Rosa failed to address the plain error standard in his opening
7A Grade B violation includes "conduct constituting any other federal, state, or local offense punishable by a term of imprisonment exceeding one year." U.S Sent'g Guidelines Manual § 7B1.1(a)(2) (U.S. Sent'g Comm'n 2023).
- 20 - brief, he has waived these claims altogether. See United States
v. Cordero-Velázquez, 124 F.4th 44, 52 (1st Cir. 2024) (holding
that a defendant's failure to "attempt to satisfy [the plain error]
standard of review in his opening brief" was "fatal" (citation
modified)). For his part, Rosa ignores the government's arguments
as to his revocation sentence; indeed, his reply brief
conspicuously does not mention his revocation sentence at all. On
this record, we agree with the government that Rosa has waived his
challenges to his revocation sentence.
To preserve a challenge to a procedural error at
sentencing, a defendant's objection must be "sufficiently specific
to call the district court's attention to the asserted error,"
even though that objection "need not be framed with exquisite
precision." United States v. Mercado-Cañizares, 133 F.4th 173,
180 (1st Cir. 2025) (quoting Rivera-Berríos, 968 F.3d at 134).
Rosa does not clear that bar here.
Of Rosa's procedural arguments on appeal, only his third
argument bears any relationship to the objections he lodged at the
district court to his revocation sentence. And even then, the
relationship is shaky. At the district court, Rosa contended only
that the revocation sentence was "excessive" in light of the
parties' negotiations. Then, without prompting, he also conceded
that the parties' "understanding" about the grade of the violation
could not bind the court. Rosa never suggested that he had an
- 21 - agreement with the government on the revocation sentence that
induced him to plea.
Because the specific procedural claims Rosa raises in
his opening brief are unpreserved, he should have argued them under
the plain error standard. His failure to do so, and his decision
not to discuss the revocation sentence at all in his reply brief,
leads us to hold that he has waived these claims. See United
States v. Muñoz-Gonzalez, 145 F.4th 21, 25-26 (1st Cir. 2025);
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
We also conclude that Rosa has waived any substantive
reasonableness challenge to his revocation sentence. Although he
briefly alludes to such a challenge, the only substantive
reasonableness arguments included in his appellate briefs focus on
his § 922(g)(1) sentence. See Zannino, 895 F.2d at 17 (finding
waiver for failure to develop argument on appeal).
IV. CONCLUSION
For all these reasons, we vacate Rosa's § 922(g)(1)
sentence and remand to a different judge for resentencing on that
charge consistent with this opinion. We affirm Rosa's revocation
sentence.
- 22 -