United States Court of Appeals For the First Circuit

No. 14-2209

UNITED STATES OF AMERICA,

Appellee,

v.

EDGARDO L. BERMÚDEZ-MELÉNDEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Thompson, Selya and Barron, Circuit Judges.

José L. Nieto-Mingo and Nieto Law Offices on brief for appellant. Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Tiffany V. Monrose, Assistant United States Attorney, on brief for appellee.

June 28, 2016 SELYA, Circuit Judge. In this sentencing appeal,

defendant-appellant Edgardo L. Bermúdez-Meléndez mounts a multi-

faceted challenge to his upwardly variant sentence for a firearms

offense. After careful consideration, we affirm.

I.

Inasmuch as this appeal trails in the wake of a guilty

plea, we draw the facts from the non-binding plea agreement (the

Agreement), the change-of-plea colloquy, the undisputed portions

of the presentence investigation report (PSI Report), and the

transcript of the disposition hearing. See United States v.

Almonte-Nuñez,

(1st Cir. 2014). On November 27,

2013, Puerto Rico police officers executed a search warrant at the

appellant's residence in Guaynabo. Upon their arrival, the

appellant fled into a wooded area near the house, jumped off a

small cliff, and broke both legs. A subsequent inspection of the

fallen man and his possessions revealed quantities of powdered

cocaine, crack cocaine, and marijuana, an AK-47 assault rifle, and

a collection of magazines and ammunition. More magazines and

ammunition, along with a Glock pistol, were found in the

appellant's living room.

In due season, a federal grand jury returned a four-

count indictment. Counts 1 through 3 charged the appellant with

a litany of drug-trafficking crimes, while count 4 — the only count

in issue here — charged him with possession of a firearm in

- 2 - furtherance of a drug-trafficking crime. See

(c)(1)(A). After initially maintaining his innocence, the

appellant relented and entered into the Agreement, in which he

agreed to plead guilty to count 4 in exchange for the dismissal of

the other charges. Among other things, the Agreement memorialized

a joint sentencing recommendation of 72 months' immurement.

At the change-of-plea hearing, the district court

accepted the appellant's guilty plea to count 4 and ordered the

preparation of the PSI Report. In the completed Report, the

probation office noted that the statute of conviction required a

minimum 60-month term of imprisonment. See

(c)(1);

USSG §2K2.4(b). It further noted that it had identified no factors

demanding an upward variance (but it did not foreclose the

possibility of such a variance).

At sentencing, the parties urged the district court to

impose the agreed 72-month sentence. The court demurred,

concluding that a stiffer sentence was in order. It then meted

out a 90-month incarcerative term.1 This timely appeal ensued.

II.

We pause at the threshold to brush aside the waiver-of-

appeal clause contained in the Agreement. That clause conditioned

the waiver on the imposition of a sentence in "accordance with the

1 The court, in pursuance of the Agreement, also dismissed the three remaining counts.

- 3 - terms and conditions set forth in the Sentence Recommendation

provisions of [the Agreement]." The sentence levied by the

district court was not within the compass of the Sentence

Recommendation provisions. It follows that the waiver-of-appeal

clause is a dead letter and does not pretermit this appeal. See,

e.g., United States v. Vargas-García,

, 165 n.2 (1st

Cir. 2015).

III.

This brings us to the appellant's asseverational array.

It is familiar lore that we review challenges to the reasonableness

of a sentence by means of a two-step pavane. See Gall v. United

States,

(2007); United States v. Martin,

(1st Cir. 2008). We begin by examining assignments of

procedural error, which 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." Gall,

. Once this hurdle is cleared, we then appraise the

substantive reasonableness of the sentence, "tak[ing] into account

the totality of the circumstances, including the extent of any

variance from the Guidelines range."

- 4 - In determining substantive reasonableness, substantial

respect is due to the sentencing court's discretion. See

This

deferential approach recognizes that though "[a] sentencing court

is under a mandate to consider a myriad of relevant factors

. . . the weighting of those factors is largely within the court's

informed discretion." United States v. Clogston,

(1st Cir. 2011). Even with respect to an upwardly variant

sentence, an appellate court "must give due deference to the

district court's decision that the [18 U.S.C.] § 3553(a) factors,

on a whole, justify the extent of the variance." Gall,

.

In carrying out these tasks, our standard of review is

for abuse of discretion. See id.; United States v. Narváez-Soto,

(1st Cir. 2014). We caution, however, that this

standard of review is not monolithic: within it, we review

conclusions of law de novo and findings of fact for clear error.

See Narváez-Soto,

; United States v. Walker,

(1st Cir. 2011).

A.

Against this backdrop, we turn first to the appellant's

claims of procedural error. To this end, the appellant argues

that the district court failed to give an adequate explanation for

the sentence imposed and, in the bargain, failed to make an

individualized assessment of his history and characteristics. He

- 5 - adds that the district court mischaracterized his inventory of

weapons and ammunition. We deal with these claims of procedural

error one by one. Because none of them was raised below, "the

plain error standard supplants the customary standard of review."

United States v. Dávila-González,

(1st Cir. 2010).

Review for plain error is not appellant-friendly. That

review "entails four showings: (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. Duarte,

(1st Cir.

2001).

1.

The appellant's principal procedural challenge

implicates

(c), which obliges a sentencing court

to "state in open court the reasons for its imposition of the

particular sentence." This statutory imperative has consistently

been "read in a practical, common-sense way," Dávila-González,

, mindful that the adequacy of a sentencing court's

explanation must be judged case by case.

Even so, a sentencing court need not "be precise to the

point of pedantry." United States v. Turbides-Leonardo,

(1st Cir. 2006). To satisfy its burden of explanation, the

sentencing court need do no more than identify the main factors

- 6 - behind its decision. See United States v. Sepúlveda-Hernández,

(1st Cir. 2016).

In the case at hand, there is no applicable guideline

sentencing range; the statutory mandatory minimum sentence (here,

60 months) is the guideline sentence. See USSG §2K2.4(b), comment.

(n.2); see also Vargas-García,

; United States v.

Rivera-González,

(1st Cir. 2015). In such a

situation — that is, when application of the sentencing guidelines

yields a singular guideline sentence rather than a guideline

sentencing range — a sentence in excess of the guideline sentence

should be treated as an upward variance. See United States v.

Oquendo-Garcia,

(1st Cir. 2015). Thus, the

sentence imposed below was the functional equivalent of an upward

variance of 30 months. This is potentially important because an

upwardly variant sentence usually requires a fuller explanation

than a guideline sentence. See Gall,

; United States

v. Montero-Montero,

(1st Cir. 2016).

At the disposition hearing, the district court commented

upon the appellant's frequent brushes with the law, the seriousness

of the offense of conviction, and the need to promote both

deterrence and respect for the law. The court then noted the joint

sentencing recommendation2 and stated: "I don't think that that is

2The court recalled the joint sentencing recommendation as 70 months' imprisonment, not 72 months' imprisonment. Obviously, the

- 7 - enough considering the nature of the firearms, the amount of

ammunition, the kind of magazines, the whole bit. It's an arsenal

. . . ."

This explanation is lean, but we think it sufficient to

withstand plain error review. After all, the appellant had

assembled an impressive array of munitions: an AK-47 assault rifle,

at least 11 high-capacity magazines, roughly 270 rounds of

ammunition (in various calibers), and a Glock pistol. To make

matters worse, he possessed these munitions in close proximity to

a trove of illegal drugs. Where — as here — "the record permits

a reviewing court to identify both a discrete aspect of an

offender's conduct and a connection between that behavior and the

aims of sentencing, the sentence is sufficiently explained to pass

muster under section 3553(c)." United States v. Fernández-

Cabrera,

(1st Cir. 2010).

This conclusion is strengthened by the fact that the

appellant himself acknowledged the appropriateness of an upward

variance: he agreed to the imposition of a 72-month sentence (an

upward variance of 12 months over the guideline sentence). The

sentencing court's determination that the gravity and

circumstances of the offense of conviction warranted an additional

18 months of imprisonment was not plain error.

court misspoke. In context, though, this slip of the tongue is inconsequential.

- 8 - Nor is there any basis here for the appellant's

suggestion that the district court was obliged to explain why it

rejected the parties' joint recommendation for a 72-month

sentence. See United States v. Ruiz-Huertas,

(1st Cir.), cert. denied,

(2015). Although a

sentencing court typically has a duty to explain why it selected

a particular sentence, it has "no corollary duty to explain why it

eschewed other suggested sentences." United States v. Vega-

Salgado,

(1st Cir. 2014).

2.

The appellant's second claim of procedural error posits

that the district court did not individualize his sentence and,

thus, overlooked some sentencing factors. But at the disposition

hearing, the court clearly indicated its awareness of the

appellant's personal history and characteristics. For example, it

engaged explicitly with the appellant's drug consumption, the

absence of any mental health issues, and the like. There is no

reason to believe that the court neglected to factor this

information into the sentencing calculus. For aught that appears,

the appellant's real complaint is not that the court ignored his

history and personal characteristics but that it weighed those

factors less favorably than he would have liked. Assigning weight

to pertinent sentencing factors is, within wide limits, a

prototypical exercise of a sentencing court's discretion, see

- 9 - Rivera-González,

, and those wide limits were not

exceeded here.

3.

The appellant's procedural challenge has a final facet:

he attacks the district court's use of the term "arsenal" in

describing the assortment of firearms and ammunition at his

residence.3 This attack is easily repulsed.

While the court may have engaged in hyperbole,

sentencing courts are entitled to broad latitude in their

linguistic choices. Consequently, gratuitous rhetorical

flourishes, without more, will not render a sentence infirm. See

United States v. Flores-Machicote,

(1st Cir.

2013). So it is here: the court's meaning was clear, and its use

of the term "arsenal" in no way compromised the legitimacy of the

sentence imposed.

B.

Having cleared the procedural hurdles, we come next to

the appellant's assertion that the length of his sentence renders

it substantively unreasonable. This assertion rests largely on

3 For example (as quoted above), the court said when it pronounced sentence: " . . . considering the nature of the firearms, the amount of ammunition, the kind of magazines, the whole bit. It's an arsenal . . . ." To cite another example, the court remarked, at an earlier point during the disposition hearing, "when you have this [sic] kind of firearms, this is what you call an arsenal."

- 10 - his plaint that the district court relied too heavily on acts of

violence in the general community in formulating an overly harsh

sentence.

Even though the appellant did not advance this claim of

error below, the standard of review is in doubt. See Ruiz-Huertas,

(discussing conflicting case law with respect to

application of plain error standard to claims that a sentence is

substantively unreasonable). We need not answer that open question

today: assuming, favorably to the appellant, that review is for

abuse of discretion, the claim of error founders.

The "touchstone of abuse of discretion review in federal

sentencing is reasonableness." United States v. Vargas-Dávila,

(1st Cir. 2011). Reasonableness is itself an

inherently fluid concept. See Martin,

. In any

given case, "[t]here is no one reasonable sentence . . . but,

rather, a universe of reasonable sentencing outcomes." Clogston,

.

A challenge to the substantive reasonableness of a

sentence pivots on whether the sentencing court has offered a

plausible rationale for the sentence and whether the sentence

itself represents a defensible outcome. See United States v.

Madsen,

(1st Cir. 2016); Martin,

.

In this instance, the sentencing court's rationale was plausible.

As we already have explained, the court's reasoning stressed the

- 11 - nature of the firearms, the quantity and variety of ammunition,

and the diverse assortment of magazines found in the appellant's

possession. Additionally, the court noted the seriousness of the

offense, the need to promote both deterrence and respect for the

law, and the appellant's past difficulties with the authorities.

So viewed, the upwardly variant sentence was grounded in a

plausible sentencing rationale and "serve[d] the objectives of

sentencing." Kimbrough v. United States,

(2007).

To be sure, the district court did embellish this

rationale. For example, it stated during the disposition hearing,

"How many more, how many more firearms are we going to allow on

the streets of this island? How many more acts of violence?"

Spotlighting such comments, the appellant suggests that the

court's sentencing rationale was tainted by its concerns about

community-based considerations. We do not agree.

We have squarely held that a district court may consider

community-based and geographic factors in formulating its

sentence. See Flores-Machicote,

. The court

here did not stray beyond this limited grant of authority: though

it decried the pervasive problems associated with violent crimes

in Puerto Rico, it did so only glancingly — and then, only in

connection with the need for deterrence. Throughout, the court

remained attentive to the particulars of the appellant's case and

(as noted above) engaged with his personal history and

- 12 - characteristics. So, too, the court took into account the stark

fact that the appellant used his dwelling as a storage facility

for guns, magazines, and ammunition. Under these circumstances,

we discern no abuse of discretion in the sentencing court's linkage

between community-based considerations and the need for

deterrence.

Nor does the length of the appellant's sentence (90

months) seem indefensible. The offense of conviction is quite

serious, the circumstances of its commission are particularly

troubling, and the sentence imposed represents only a modest

increase over the sentence (72 months) that the appellant himself

thought condign. Seen in this light, the sentence fits comfortably

within the universe of reasonable sentencing outcomes. We

therefore reject the claim of substantive unreasonableness.

IV.

We need go no further. For the reasons elucidated above,

the appellant's sentence is

Affirmed.

- 13 -