Not For Publication in West's Federal Reporter

United States Court of Appeals For the First Circuit

No. 15-1755

UNITED STATES OF AMERICA,

Appellee,

v.

PEDRO VÁZQUEZ-MÉNDEZ,

Defendant, Appellant.

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

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Torruella, Selya and Thompson, Circuit Judges.

Elizabeth Billowitz on brief for appellant. Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, on brief for appellee.

July 11, 2016 SELYA, Circuit Judge. Defendant-appellant Pedro

Vázquez-Méndez challenges his upwardly variant sentence on both

procedural and substantive grounds. Discerning no reversible

error, we affirm.

The critical facts are uncontested. On November 26,

2014, the appellant was operating a motor vehicle on a public

highway in Ponce, Puerto Rico. Police officers attempted to pull

him over, but the appellant ignored them and sped away. When the

appellant eventually stopped, a passenger jumped out of his vehicle

and ran, brandishing a firearm. The police observed — in plain

sight within the vehicle — a magazine loaded with rounds of

ammunition and a clear bag of a substance later confirmed to be

marijuana. A subsequent search revealed that the appellant was

also in possession of a quantity of heroin.

In due course, a federal grand jury sitting in the

District of Puerto Rico returned a five-count indictment against

the appellant and his passenger (who by then had been apprehended).

The appellant was charged with various firearms and drug-related

offenses. After initially maintaining his innocence, the

appellant entered into a plea agreement (the Agreement) with the

government and pleaded guilty to two of the counts lodged against

him: knowingly possessing a firearm in furtherance of a drug-

trafficking crime (count 1), see

(c), and possessing

- 2 - marijuana with intent to distribute (count 3), see

(a)(1).

In pertinent part, the Agreement provided that the

remaining charges against the appellant would be dismissed and

that the parties would jointly recommend a 60-month incarcerative

sentence on the firearms charge. The Agreement also contained a

waiver-of-appeal clause, which provided that the appellant would

waive his right to appeal if sentenced in accordance with the

sentencing recommendation memorialized in the Agreement.

The district court accepted the plea, and the probation

department compiled a presentence investigation report (the PSI

Report). The Report noted that the firearms offense limned in

count 1 carried a statutory mandatory minimum term of imprisonment

of 60 months, to run consecutive to the sentence imposed on any

other count. See

(c). The Report further noted

that the guideline sentencing range for the marijuana distribution

charge was 0 to 6 months. Finally, the Report noted that — based

on the seriousness of the offense charged in count 1 — the

sentencing court could consider an upward departure under USSG

§5K2.21.

The disposition hearing was convened on June 2, 2015.

The government stood by the sentencing recommendation in the

Agreement and urged the imposition of a 60-month sentence. The

court demurred, focusing primarily on the perceived need for

- 3 - deterrence and the appellant's unattractive criminal history. It

paid particular heed to the appellant's prior convictions for drug

and gun offenses and to the fact that he had committed the instant

offenses while he was still serving a supervised release term

referable to one of those convictions. In the end, the court

sentenced the appellant to a 72-month term of immurement on count

1 and a 6-month term of immurement on count 3.1 The court specified

that these terms would run consecutively with each other and

consecutive to the 35-month term of imprisonment separately

imposed for the revocation of the appellant's supervised release.

This timely appeal ensued. The parties acknowledge that

the waiver-of-appeal clause does not pretermit this appeal because

the sentence imposed exceeded the parameters of the sentencing

recommendation contained in the Agreement. See, e.g., United

States v. Rivera-González,

(1st Cir. 2015). We

agree.

"We review challenges to the reasonableness of a

sentence in line with a two-step pavane." Rivera-González,

; see United States v. Martin,

(1st Cir.

1 Although the Agreement contained a joint recommendation for a non-incarcerative sentence on the marijuana distribution charge (count 3), the appellant's brief makes no separate challenge to the six-month sentence imposed on that count. Thus, even though the appellant from time to time refers to his sentence as "a 78- month sentence," we treat his appeal as challenging only the upwardly variant sentence imposed on count 1, not the within-the- range sentence imposed on count 3.

- 4 - 2008). First, we examine claims of procedural error. See Rivera-

González,

. Once this hurdle is cleared, we proceed

to weigh any challenge to the substantive reasonableness of the

sentence. See

In conducting this tamisage, our overall review is for

abuse of discretion. See Martin,

. Claims of

procedural error, however, trigger a more nuanced standard. With

respect to such claims, "we assay the district court's factfinding

for clear error and afford de novo consideration to its

interpretation and application of the sentencing guidelines."

United States v. Flores-Machicote,

(1st Cir. 2013).

This standard may, of course, be altered when a party has failed

seasonably to object in the proceedings below. In that event,

review is for plain error. See United States v. Ruiz-Huertas,

(1st Cir.), cert. denied,

(2015).

Plain error is not an appellant-friendly standard. It

requires an appellant to establish "(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).

With these standards of review in place, we turn first

to the appellant's specific claims of procedural error: his claim

- 5 - that the district court did not sufficiently weigh key sentencing

factors and his claim that the district court based its sentencing

determination on improper considerations. Because neither of

these claims was preserved below, our review is only for plain

error.

We start with the appellant's contention that the

sentencing court failed to give due consideration to key factors

made relevant by

(a) — specifically, the

appellant's personal characteristics and the nature and

circumstances of the offense. This contention is woven entirely

out of speculation: at sentencing, the district court explicated

both the appellant's personal history and his litany of previous

offenses. The court likewise noted that the offenses of conviction

occurred a mere six months into the appellant's ongoing supervised

release term. No more was exigible: it is readily apparent that

the appellant's "real complaint is not that the court failed to

consider the section 3553(a) factors, but that the court did not

assign the weight to certain factors that the [appellant] thought

appropriate." Ruiz-Huertas,

. Seen in this light,

plain error is plainly absent. See id.; see also United States v.

Clogston,

(1st Cir. 2011) (explaining that "the

weighting of [sentencing] factors is largely within the court's

informed discretion").

- 6 - The appellant's remaining claim of procedural error

posits that the district court improperly premised the sentence on

community-based and geographic factors (including concerns about

the local crime rate) rather than on an individualized assessment

of his circumstances. This claim, too, lacks force.

We have made pellucid that a "sentencing court may take

into account the characteristics of the community in which the

crime took place when weighing the offense's seriousness and the

need for deterrence." United States v. Zapata-Vázquez,

(1st Cir. 2015). Thus, community-based factors and the

concomitant need for deterrence are "widely recognized" as

important ingredients in the sentencing calculus. Flores-

Machicote,

; accord Rivera-González,

-

51.

To be sure, a sentencing court may not place too heavy

a thumb on the scale: it may not unduly weigh community-based

considerations to the detriment of case-specific factors. But

within wide limits, the weighing of relevant section 3553(a)

factors, including community-based considerations, remains within

the sentencing court's sound discretion. See Zapata-Vázquez,

; Flores-Machicote,

. The case at hand

falls comfortably within the encincture of this discretion.

Here, the court explicitly considered the appellant's

personal history and the nature and circumstances of the offenses

- 7 - of conviction. Its consideration of the local crime rate and the

prevalence of gun violence in Puerto Rico was relatively brief and

tied specifically to the need for deterrence; it hardly came "at

the expense of" case-specific factors. Zapata-Vázquez,

. In the last analysis, we discern nothing approaching plain

error in the sentencing court's references to local conditions in

Puerto Rico.

This brings us to the appellant's claim that his sentence

is substantively unreasonable. Though this claim was not raised

below, the standard of review for an unpreserved challenge to the

substantive reasonableness of a sentence is uncertain. See United

States v. Pérez,

(1st Cir. 2016); Ruiz-Huertas,

& n.4. Here, however, we need not resolve this

uncertainty. Even assuming, favorably to the appellant, that the

abuse of discretion standard prevails, the challenged sentence

easily passes muster.

The appellant's principal asseveration is that his

personal history "does not justify additional punishment beyond

that requested by the [g]overnment and suggested by the

guidelines." The lens through which we must view this asseveration

is well-defined: a sentence is substantively reasonable when it

rests on a "plausible sentencing rationale" and betokens a

"defensible result." Martin,

. The mere fact that

the sentencing court varies upward from the guidelines does not

- 8 - make a sentence substantively unreasonable.2 See Flores-Machicote,

("[E]ven a substantial variance does not translate,

ipso facto, into a finding that the sentence is substantively

unreasonable.").

Challenging a sentence as substantively unreasonable is

an uphill climb. We will vacate a sentence on this ground "if —

and only if — the sentencing court's ultimate determination falls

outside the expansive boundaries of [the] universe" of reasonable

sentences. Martin,

.

In this instance, the sentencing court provided an

eminently plausible rationale for imposing a 72-month sentence.

That rationale emphasized the appellant's checkered criminal past,

the commission of the offenses of conviction only six months into

a supervised release term for an earlier conviction, and the patent

need for deterrence. By the same token, a 72-month term of

immurement is wholly defensible. Though the sentence varied upward

from the guideline sentence, that 12-month variance is entirely

commensurate with the aggravating factors that are apparent in

this case.

2 As we recently have explained, the statutory mandatory minimum sentence applicable here (60 months) is the guideline sentence. See United States v. Bermúdez-Meléndez, ___ F.3d ___, ___ (1st Cir. 2016) [No. 14-2209, slip op. at 7]. When, as now, "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."

- 9 - Nor does the fact that the district court chose to

deviate from the parties' joint sentencing recommendation render

the sentence substantively unreasonable. As we have explained,

the relevant inquiry must focus on the substantive reasonableness

of the sentence actually imposed, not on the relative merits of

that sentence as contrasted with a different sentence mutually

agreed to by the parties. Cf. United States v. Bermúdez-Meléndez,

___ F.3d ___, ___ (1st Cir. 2016) [No. 14-2209, slip op. at 9]

("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.'" (quoting

United States v. Vega-Salgado,

(1st Cir. 2014))).

That ends this aspect of the matter. It is common ground

that "[r]easonableness entails a range of potential sentences, as

opposed to a single precise result." United States v. Dixon,

(1st Cir. 2006). Here, the challenged sentence

unarguably falls within the range of reasonable sentences.

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

the sentence is

Affirmed.

- 10 -