United States Court of Appeals For the First Circuit
No. 22-1642
UNITED STATES,
Appellee,
v.
JOHN DERICK ROSARIO-MERCED,
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, Hamilton,* and Thompson, Circuit Judges.
José B. Vélez Goveo, with whom Vélez & Vélez Law Office was on brief, for appellant. Jeniffer Vélez Pérez, 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.
July 25, 2024
* Of the Seventh Circuit, sitting by designation. HAMILTON, Circuit Judge. Defendant-Appellant John
Derick Rosario-Merced ("Rosario") was convicted of possessing
crack cocaine with intent to distribute in violation of 21 U.S.C.
§ 841(a)(1) and possessing a firearm in furtherance of a drug
trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). The
Sentencing Guidelines recommended a sentence of 15 to 21 months in
prison for the drug charge and a consecutive 60 months in prison
for the firearm count. The district court opted to vary upward
from the guideline range and sentenced Rosario to 96 months on the
firearm count and 18 months on the drug count, for a total prison
sentence of 114 months, which was 33 months above the high end of
the guideline range. On appeal, Rosario contends that this upward
variance was procedurally and substantively unreasonable.
We affirm because the district court gave sufficient
reasons for the upward variance, including the quantity of
ammunition and magazines Rosario possessed and the judge's view of
the need for deterrence.
I. FACTUAL AND PROCEDURAL BACKGROUND
In July 2021, police were tipped off that Ivan Javier
Gines-Negron, who had an outstanding arrest warrant, was staying
in Rosario's apartment. Several officers went to Rosario's
apartment to arrest Gines-Negron. They saw Gines-Negron standing
outside the apartment building, but when the officers approached,
- 2 - he ran away. He fled up the building's stairs and disappeared
into an apartment.
Officers chased him up the stairs and knocked on the
apartment door to demand entry. Meanwhile, Gines-Negron began
throwing guns, drugs, and ammunition out a back window. He tossed
out an FN Herstal pistol, an extra extended magazine, a total of
35 bullets, and baggies and packets of cocaine and heroin. At the
front door, the officers ordered everyone out of the apartment.
Rosario and Gines-Negron walked out and were promptly arrested.
Officers swept the apartment and found a collection of
contraband. They recovered a second firearm, a Glock semiautomatic
handgun that had been modified to shoot automatically, making it
a machinegun. In total, counting contraband found both inside and
outside the apartment, the officers recovered a total of four
magazines (three of which were high-capacity), 107 rounds of
ammunition, 10.1 grams of crack cocaine, and 1.5 grams of
fentanyl.1
A federal grand jury indicted Rosario on four offenses:
possessing a machinegun in furtherance of a drug trafficking crime
in violation of 18 U.S.C. §§ 924(c)(1)(A) and 924(c)(1)(B)(ii);
1 TheSentencing Guidelines define a "large capacity magazine" as one with a capacity of fifteen or more rounds. U.S.S.G. § 5K2.17. The PSR here used the phrase "extended," but we have used "extended" and "high-capacity" interchangeably. See, e.g., United States v. Díaz-Lugo, 963 F.3d 145, 150 (1st Cir. 2020)
- 3 - possessing a firearm in furtherance of a drug trafficking crime in
violation of 18 U.S.C. § 924(c)(1)(A); possessing crack cocaine
with intent to distribute in violation of 21 U.S.C. § 841(a)(1);
and possessing heroin with intent to distribute in violation of 21
U.S.C. § 841(a)(1). Rosario pled guilty to possessing a firearm
in furtherance of a drug crime and to the crack cocaine charge.
The machinegun and heroin charges were dismissed by agreement.
For possessing crack cocaine with intent to distribute,
the Sentencing Guidelines recommended 15 to 21 months in prison
based on Rosario's total offense level of 13 and criminal history
category of II. For possessing a firearm in furtherance of a drug
trafficking crime, the Sentencing Guidelines recommended the
mandatory minimum codified in 18 U.S.C. § 924(c)(1)(A): 60 months
in prison, consecutive to any other sentence.
Rosario advocated a total sentence of 81 months in
prison, comprised of 15 months on the drug count and 66 months on
the firearm count, followed by five years of supervised release.
The government recommended a total of 102 months in prison — 18
months on the drug count and 84 months on the firearm count — also
followed by five years of supervised release.
The district court sentenced Rosario to a total of 114
months in prison (18 months on the drug count and 96 months on the
firearm count) followed by five years of supervised release. The
judge explained that he imposed the above-guideline sentence for
- 4 - two reasons. First, the judge noted the circumstances of Rosario's
offenses — that he "was in constructive possession" of two guns,
four magazines, 107 rounds of ammunition, and controlled
substances. Second, the judge found a greater need for deterrence.
Citing Puerto Rico's high rate of firearm offenses and its high
rate of murders as compared to other jurisdictions within the First
Circuit, the judge concluded that a longer sentence would better
serve deterrence goals. These factors were reiterated in the
district court's written Statement of Reasons.
II. Analysis
On appeal, Rosario argues that his sentence is
procedurally and substantively unreasonable. Though his brief
mentions his substantive reasonableness challenge only in passing,
we assume that he meant to bring both challenges, and we review
them separately. See United States v. Calderon-Zayas, 102 F.4th
28, 35–36 & n.6 (1st Cir. 2024) (analyzing an ambiguous challenge
under both procedural and substantive lenses "out of an abundance
of caution" (internal quotations omitted)).
Where a defendant challenges his sentence as both
procedurally and substantively unreasonable, we consider first the
procedural challenge and then the substantive challenge. United
States v. Ramirez-Ayala, 101 F.4th 80, 86 (1st Cir. 2024). We
conclude that the sentence was neither procedurally nor
substantively unreasonable.
- 5 - A. Procedural Reasonableness
Rosario argues that the district court made a procedural
error by failing to explain adequately the above-guideline
sentence. In Rosario's view, Puerto Rico's high murder rate does
not justify the upward variance. He argues that the guideline
range "had already taken into account" the "ordinary"
circumstances of his offenses, so that the judge's references to
other criminal activity resulted in Rosario being punished for
crimes he did not commit. Rosario did not raise this argument
before the district court, so we review this point, at best, for
plain error. Ramirez-Ayala, 101 F.4th at 86. In addition, because
Rosario has not addressed the plain-error standard in his brief,
his claim is waived. See, e.g., United States v. Vázquez-Rosario,
45 F.4th 565, 571 (1st Cir. 2022) (finding appellant's claim waived
because brief failed to address applicable standard of review).
Because Rosario's claim fails on the merits in any event, however,
we address it accordingly.
Rosario's argument mischaracterizes the district court's
explanation for the upward variance. The court identified two
factors supporting it: the additional contraband that Rosario
possessed in addition to the charged firearm, and the high murder
rate in Puerto Rico. As we explain below, the district court did
not commit plain error by considering these factors together,
though we might be more skeptical if the judge had relied upon
- 6 - Puerto Rico's high murder rate alone. See United States v.
Rivera-Berríos, 968 F.3d 130, 135–37 (1st Cir. 2020) (vacating
sentence in part because district court's discussion of Puerto
Rico's crime trends was not tied to individual characteristics of
the offender or the offense of conviction).
1. Additional Contraband
Possessing additional contraband can support an upward
variance because a judge may find that the Sentencing Guidelines
do not account sufficiently for all the guns and ammunition
involved in an offense. Cf. United States v. Díaz-Lugo, 963 F.3d
145, 155 (1st Cir. 2020) (affirming above-guideline sentence where
applicable guideline, U.S.S.G. § 2K2.1(a)(4)(B), accounted for
only one of two guns possessed by defendant and none of defendant's
four high-capacity magazines). For example, the 60-month
mandatory minimum in this case would have applied even if the
charged firearm had not been loaded and Rosario had not possessed
any ammunition or magazines. The simple fact that he possessed a
firearm "during and in relation to any . . . drug trafficking
crime" sufficed to require a 60-month consecutive prison term for
the firearm charge. 18 U.S.C. § 924(c)(1)(A); U.S.S.G.
§ 2K2.4(b). In this case, the district court explained that the
applicable guideline provisions did not account adequately for the
additional firearm, the substantial quantity of ammunition, and
the extra magazines.
- 7 - In similar cases, we have explained that additional
contraband can justify an above-guideline sentence if the
defendant possessed more ammunition or magazines than would be
expected in a typical unlawful possession case. See, e.g., United
States v. Morales-Vélez, 100 F.4th 334, 344–45 (1st Cir. 2024).
Possessing a gun, even illegally, generally entails possessing
bullets and magazines too, so in a run-of-the-mill case for
unlawful gun possession, a defendant could reasonably be expected
to have at least some ammunition and magazines in his possession
as well. But the facts of a case may be deemed atypical, and
therefore support an above-guideline sentence, when a defendant
possesses significantly more ammunition or magazines than in a
typical case. Id. at 344. These are not bright lines, of course,
but the Sentencing Guidelines are "effectively advisory," not
binding. Beckles v. United States, 580 U.S 256, 265 (2017)
(Sentencing Guidelines not subject to void-for-vagueness
challenge). Accordingly, when a drug dealer possesses a
substantial cache of illegal ammunition and high-capacity
magazines alongside his illegal firearm, a sentencing judge could
reasonably conclude that the underlying offense was more serious
than the mine-run of such cases.2
2 A sentencing judge also would not be obliged to vary upward based on a large quantity of ammunition and/or high-capacity magazines. As we have emphasized, sentencing usually involves
- 8 - We caution that sentences should not be determined just
by counting bullets. In cases like this one, quantity is one
factor to consider along with many others. See United States v.
Greig, 717 F.3d 212, 223 (1st Cir. 2013) (recognizing range of
information sentencing judges may consider). That being said, our
case law has identified some guideposts for determining when
additional ammunition may support an upward variance, and on which
charges. Marking the lower end of the spectrum is Rivera-Berríos,
where we vacated an above-guideline sentence for possession of a
machinegun, concluding that possessing 36 rounds of ammunition and
two high-capacity magazines "was entirely consistent with simple
possession of a machine gun." 968 F.3d at 133, 135.
Several cases are closer to the other end of the
spectrum. See United States v. Aponte-Colón, 104 F.4th 402, 418
(1st Cir. 2024) (no abuse of discretion where upward variance for
possessing firearm in furtherance of drug-trafficking crime was
based in part on possession of 123 rounds of ammunition and
multiple high-capacity magazines); Morales-Vélez, 100 F.4th at
considerable discretion and judgment, and a judge might reasonably conclude that excessive ammunition is outweighed by mitigating factors. See generally United States v. Carrasquillo-Vilches, 33 F.4th 36, 44–45 (1st Cir. 2022) (affirming sentence at high end of guideline range where judge exercised discretion in weighing aggravating and mitigating factors); United States v. Greig, 717 F.3d 212, 223 (1st Cir. 2013) (explaining that "sentencing judges have discretion to consider a variety of information in fashioning a sentence").
- 9 - 340, 344–45 (no abuse of discretion where upward variance for
possessing firearm in furtherance of drug-trafficking crime was
based in part on possession of 125 rounds of ammunition and four
magazines, two of which were high-capacity); United States v.
Bruno-Campos, 978 F.3d 801, 804, 806 (1st Cir. 2020) (no plain
error where upward variance for possessing a machinegun was based
in part on possession of 89 rounds of ammunition and four
magazines, two of which were high-capacity); United States v.
Rivera-Santiago, 919 F.3d 82, 83, 85–86 (1st Cir. 2019) (no abuse
of discretion where upward variance for unlawfully possessing
firearm was based in part on possession of 127 rounds of ammunition
and five magazines, two of which were high-capacity).
Rosario's case falls on the higher end of this spectrum,
given both the quantity of the contraband and the offense of
conviction, possessing a firearm in furtherance of a drug-
trafficking crime. He constructively possessed 107 rounds of
ammunition, four magazines (three of which were high-capacity),
and another firearm for which he was not convicted. The district
court did not err, plainly or otherwise, by finding these items
differentiated Rosario's case from the garden-variety case of
possessing a firearm in furtherance of a drug-trafficking crime.
2. Community Characteristics
A district court may consider community characteristics
in imposing a sentence. "Community-based considerations are
- 10 - inextricably intertwined with deterrence," and "the incidence of
particular crimes in the relevant community appropriately informs
and contextualizes the relevant need for deterrence." United
States v. Flores-Machicote, 706 F.3d 16, 23 (1st Cir. 2013).
Rosario contends, however, that justifying the upward variance by
comparing Puerto Rico's murder rate to murder rates in other
jurisdictions in the First Circuit improperly led the district
court to impute other crimes to Rosario.
The judge's comparison of murder rates was not a
reversible error. We have cautioned that sentencing judges should
not "focus too much on the community and too little on the
individual." United States v. Polaco-Hance, 103 F.4th 95, 102
(1st Cir. 2024) (quoting Flores-Machicote, 706 F.3d at 24). The
hallmark of sentencing is an individualized assessment of the
considerations listed in 18 U.S.C. § 3553(a). See Gall v. United
States, 552 U.S. 38, 49–50 (2007). While the need for deterrence
is one factor listed in § 3553(a), it would be an error to justify
an individual defendant's sentence based only on the need for
general deterrence to the exclusion of other factors.
Here, though, the district court did not decide
Rosario's sentence by evaluating only community characteristics.
He considered them alongside other individualized
factors — namely, the additional contraband that Rosario
possessed. The district court discussed Puerto Rico's high murder
- 11 - rate with an eye toward general deterrence, a permissible factor
to weigh during sentencing. See 18 U.S.C. § 3553(a)(2)(B); United
States v. Rivera-Gonzalez, 776 F.3d 45, 50–51 (1st Cir. 2015)
(explaining that district court's consideration of community
characteristics was not improper where it focused on deterrence
and was considered alongside other individual factors). We find no
error, let alone a plain error, in the district court's
consideration of all these relevant factors.3
3. Constructive Possession
For the first time during oral argument on appeal,
Rosario asserted that the district court erred in finding that he
had constructive possession of the gun, drugs, and ammunition that
Gines-Negron had thrown out the window. Rosario waived this
argument by failing to include it in his opening brief. See United
States v. Leoner-Aguirre, 939 F.3d 310, 319 (1st Cir. 2019)
(challenge to jury instruction was waived where it was raised for
first time during oral argument on appeal). We have excused such
failures on occasion where it was necessary to avoid a miscarriage
of justice. See United States v. Flores-González, 86 F.4th 399,
3 Comparing Puerto Rico community characteristics against only
other jurisdictions in the First Circuit may not offer the most insightful analysis in determining whether to impose an upward variance. The Sentencing Guidelines are based on nationwide statistics (which include Puerto Rico), so intra-circuit comparisons may not explain why a particular defendant should be punished more or less severely than suggested by the nationwide data factored into the Guidelines.
- 12 - 442 (1st Cir. 2023) (en banc) (opinion of Thompson, J.) (citing
Sindi v. El-Moslimany, 896 F.3d 1, 30 (1st Cir. 2018) (excusing
waiver where appellants challenged permanent injunction barring
certain speech)). This is not such a case. Rosario's argument
depends on factual findings that are unlikely to present themselves
again in the same fact pattern. Rosario's argument also was not
"highly convincing" when he offered it for the first time at oral
argument. El-Moslimany, 896 F.3d at 28 (appellant's "highly
convincing" argument was factor in excusing waiver). Though
Rosario argued that the district court erred in finding that he
had constructive possession of the contraband thrown out the
window, his argument did not cite cases or otherwise explain why
a miscarriage of justice would occur if we did not excuse his
waiver. We decline to address the argument.
B. Substantive Reasonableness
Rosario argues that the district court's total sentence
33 months above the guideline range was substantively
unreasonable. In the district court, he argued for a shorter
sentence than the one ultimately imposed. His argument adequately
preserved his substantive reasonableness challenge for appeal, so
we review for abuse of discretion. Holguin-Hernandez v. United
States, 589 U.S. 169, 173–74 (2020).
When sentencing a convicted defendant, a court must
weigh competing factors and impose a sentence that is "sufficient,
- 13 - but not greater than necessary," to serve multiple,
often-conflicting goals of sentencing. 18 U.S.C. § 3553(a). The
mixture of goals and case-specific factors gives the process an
unavoidable element of discretionary judgment. Reasonable judges
can weigh the same goals and factors and reach a range of
reasonable results. For this reason, we must keep in mind on
appellate review that there is not just one reasonable sentence in
a case but "a universe of reasonable sentencing outcomes."
Ramirez-Ayala, 101 F.4th at 89 (quoting United States v. Colón-De
Jesús, 85 F.4th 15, 26 (1st Cir. 2023)). We review a sentence to
ensure it "falls within this broad universe." Id. (quoting United
States v. Ortiz-Pérez, 30 F.4th 107, 113 (1st Cir. 2022)). If the
sentence "rests on a 'plausible sentencing rationale' and embodies
a 'defensible result,'" it will be found substantively reasonable.
United States v. Ruiz-Huertas, 792 F.3d 223, 228 (1st Cir. 2015)
(quoting United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008)).
The sentence in this case is substantively reasonable because it
fulfills both requirements.
The district court gave sound and legally permissible
reasons for imposing the above-guideline sentence here. The
additional firearm, ammunition, and magazines that Rosario
possessed distinguished his offense from the run-of-the-mill
offense under 18 U.S.C. § 924(c) and the applicable guideline
provisions and supported the upward variance. And the community
- 14 - characteristics mentioned by the district court bolstered the
reasoning behind the sentence.
We have upheld above-guideline sentences in similar
cases where defendants possessed ammunition and magazines in
addition to those for which they were convicted. Polaco-Hance,
103 F.4th at 104–06 (affirming 21-month upward variance for
unlawful possession of machinegun where defendant possessed 111
rounds of ammunition and four extended magazines); United States
v. Morales-Negrón, 974 F.3d 63, 65, 66–67 (1st Cir. 2020)
(affirming 24-month upward variance for unlawful possession of
machinegun where defendant possessed 57 rounds of ammunition and
four magazines, including one high-capacity magazine); Díaz-Lugo,
963 F.3d at 157–58 (affirming 23-month upward variance for unlawful
possession of machinegun where defendant possessed two machine
guns and four extended magazines following previous
felon-in-possession conviction). We do so for the same reasons
here.
III. CONCLUSION
The judgment of the district court is AFFIRMED.
- 15 -