United States Court of Appeals For the First Circuit

No. 15-2073

UNITED STATES OF AMERICA,

Appellee,

v.

CHRISTIAN VÁZQUEZ-VÁZQUEZ,

Defendant, Appellant.

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

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

Before

Torruella, Selya, and Barron, Circuit Judges.

German A. Rieckehoff on brief for appellant. Nelson Pérez-Sosa, Assistant United States Attorney, Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, on brief for appellee.

March 24, 2017 BARRON, Circuit Judge. In this appeal, Christian

Vázquez-Vázquez (Vázquez) challenges his sentence of thirty-six

months' imprisonment following the revocation of his term of

supervised release. We affirm.

I.

On November 18, 2011, Vázquez pled guilty to the offense

of conspiracy to possess with intent to distribute controlled

substances, in violation of

(a)(1), 846, and 860,

in the United States District Court for the District of Puerto

Rico. On May 24, 2012, he was sentenced to twenty-four months'

imprisonment and eight years' supervised release, which began on

February 18, 2014. On June 24, 2015, however, Vázquez's probation

officer filed a motion notifying the District Court of alleged

violations of the conditions of Vázquez's supervised release.

After a hearing, the District Court determined that Vázquez had

violated the conditions, revoked supervised release, and sentenced

Vázquez to thirty-six months' imprisonment.

Under

(e)(3), a court may revoke a term

of supervised release and require the defendant to serve a term of

imprisonment upon finding, by a preponderance of the evidence,

that the defendant violated a condition of supervised release.

Under that subsection, the term of imprisonment may not be longer

than the term of the supervised release that had been imposed.

In addition, that subsection provides that the term of

- 2 - imprisonment may not be longer than three years if the conviction

for which the supervised release was imposed was a Class B felony

-- which Vázquez's conviction was.

Section 3583(e) directs the sentencing court to consider

a subset of the factors listed in

(a) before

setting a term of imprisonment after revocation of supervised

release. These factors include "the nature and circumstances of

the offense and the history and characteristics of the defendant,"

§ 3553(a)(1); the need for "adequate deterrence," § 3553(a)(2)(B);

and the need to "protect the public," § 3553(a)(2)(C).

The United States Sentencing Guidelines prescribe an

advisory range for the term of imprisonment to be imposed upon

revocation of supervised release. The guidelines base that range

on the defendant's criminal history category and the nature of the

violations of the conditions of supervised release. U.S.S.G.

§ 7B1.4. Under the guidelines, violations of conditions of

supervised release are assigned a grade of "A," "B," or "C." Id.

§ 7B1.1(a). The guidelines provide that where "there is more than

one violation of the conditions of supervision . . . the grade of

the violation is determined by the violation having the most

serious grade." Id. § 7B1.1(b).

Vázquez's violation with the most serious grade is the

violation for possession of a firearm as a felon, which is a

violation of

(g) and is punishable by a term

- 3 - exceeding one year.

§ 924(a)(2) (providing for sentence of

"not more than 10 years"). Under the guidelines, that violation

of a condition of supervised release is a Grade B violation,

because it is a "federal . . . offense punishable by a term of

imprisonment exceeding one year." U.S.S.G. § 7B1.1(a)(2).

The guidelines establish a sentencing range of six to

twelve months' imprisonment upon revocation of supervised release

if the defendant has a criminal history category of II, as Vázquez

did, and has committed a Grade B violation, which Vázquez had.

U.S.S.G. § 7B1.4(a). Both Vázquez and the government advocated

for a sentence within that guidelines range. The District Court,

however, imposed a sentence of thirty-six months. That sentence

was three times greater than the upper end of the guidelines range

and equal to the statutory maximum the District Court could impose

under

(e)(3). Vázquez now appeals that sentence.

II.

Vázquez first contends that, in varying from the

guidelines range, the District Court erred procedurally by not

explaining the sentence imposed with reference to the factors in

(e). Generally, for procedural challenges, "we

afford de novo review to the sentencing court's interpretation and

application of the sentencing guidelines, assay the court's

factfinding for clear error, and evaluate its judgment calls for

abuse of discretion." United States v. Ruiz-Huertas, 792 F.3d

- 4 - 223, 226 (1st Cir.), cert. denied,

(2015). But,

Vázquez did not object below to the District Court's failure to

provide an explanation of the sentence by reference to § 3583(e).

And, "where the appellant has failed to preserve a claim of

procedural error below, review is for plain error." United States

v. Montero-Montero,

(1st Cir. 2016). Vázquez has

not satisfied this demanding standard.1

We are mindful that "[t]he farther the judge's sentence

departs from the guidelines sentence . . . the more compelling the

justification based on factors in [the statute] that the judge

must offer in order to enable the court of appeals to assess the

reasonableness of the sentence imposed." United States v. Smith,

(1st Cir. 2006) (quoting United States v. Dean,

(7th Cir. 2005)). But, given the explanation that

the District Court did provide, "it is easy to infer the district

court's sentencing rationale." Ruiz-Huertas, 792 F.3d at 228.

At the sentencing hearing, the District Court explained

that Vázquez is "no neophyte" to crime and that the presentence

1 "To succeed under plain error review, an appellant must show (1) that an error occurred (2) which was clear or obvious and which not only (3) affected the [appellant's] substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings." United States v. Montero- Montero,

(1st Cir. 2016) (alteration in original) (citation omitted).

- 5 - report gave a "good history" of "everything he has done before."2

The District Court then gave a lengthy summary of its factual

findings from the evidentiary hearing regarding Vázquez's

violations of the conditions of supervised release.

The District Court stated that, after being released

from custody on supervised release, Vázquez left his hometown of

Corozal, Puerto Rico, for the town of Guayama, and upon arriving

there, chose to live near the Luis Pales Matos Housing Project,

which is "a nest of drug dealing." And, the District Court found,

once Vázquez moved there, he associated with at least three people

who sell drugs, one of whom was on probation. The District Court

then found, based on testimony at the evidentiary hearing, that

Vázquez possessed a firearm, which he shot twice into the air.

Finally, the District Court pointed out -- correctly --

that these events happened "not too long" after Vázquez was placed

on supervised release. The shooting at the Luis Pales Matos Public

2 The presentence report states the following. Vázquez was previously arrested in February 2007 for attempt or conspiracy to violate a controlled substances offense, in violation of Article 406 of the Puerto Rico Controlled Substances Act. He was released on bail, and while out on bail in August of 2007, used a knife to rob a gas station, in violation of Article 198 of the Puerto Rico Penal Code and Article 5.05 of the Puerto Rico Weapons Act. Vázquez was then re-arrested and sentenced to serve a term of four years for the first offense and three and a half years for the second offense. Vázquez was released from custody in July 2011. He was then indicted in September 2011 for the offense for which he was sentenced to the supervised release term at issue here -- conspiracy to possess with intent to distribute controlled substances, in violation of

(a)(1), 846, and 860.

- 6 - Housing Project took place on March 15, 2015, and Vázquez had begun

his term of supervised release on February 18, 2014.

Thus, the District Court directly referenced both "the

nature and circumstances of the offense and the history and

characteristics of the defendant."

(a)(1). And

while the District Court did not then expressly state that those

factors warranted a sentence of the length imposed for reasons of

ensuring "adequate deterrence" or "protect[ing] the public,"

(a)(2), it is evident that this was the District

Court's rationale.

This case is thus unlike United States v. Franquiz-

Ortiz,

(1st Cir. 2010), upon which Vázquez relies.

There, we found that the district court had failed to adequately

explain its imposition of a sentence of twenty-four months'

imprisonment upon revoking the defendant's term of supervised

release.

. The sentence, which was the maximum possible

sentence under the statute, was more than double the high end of

the guidelines range, which was four to ten months' imprisonment.

. But in that case, the district court provided only

a three-line explanation, which did not reference the presentence

report.

. And, the district court gave that brief

explanation after the defendant had waived his right to a

preliminary hearing to determine whether he had violated the

conditions of supervised release.

Thus, we explained that

- 7 - the district court in that case did not have before it any specific

facts related to the violation.

Here, by contrast, the

District Court gave a lengthy description of the basis for the

sentence imposed, which relied on both the details of Vázquez's

criminal history, as set forth in the presentence report, and on

facts related to the violations of the conditions of supervised

release that the District Court found at the hearing.

Moreover, in explaining its basis for imposing the

sentence, the District Court did not err (as Vázquez contends the

District Court did) by failing expressly to mention possibly

mitigating facts, such as Vázquez's earning of a general

educational development certificate -- referred to as a GED -- and

his enrollment in college. As we have made clear before, "a

sentencing court is not required to address the § 3553(a) factors

one by one, in some sort of rote incantation when explicating its

sentencing decision, nor must the court afford each of the

§ 3553(a) factors equal prominence." United States v. Pulido,

(1st Cir. 2009) (citation omitted).

Thus, we find that the District Court committed no

procedural error. Rather, the District Court adequately explained

the sentence with reference to the statutory factors prescribed in

§ 3583(e).

- 8 - III.

Vázquez also challenges his sentence on the ground that

it is substantively unreasonable. He does so by arguing that the

sentence was too harsh in light of the fact no state criminal

charges were filed against him relating to the firearm at issue

here; that he obtained his GED and was attending college; that he

had experienced a difficult childhood and family life; and that he

had learning disabilities. But, even assuming, favorably to

Vázquez, that our review of this challenge is for abuse of

discretion rather than for plain error, United States v. Pérez,

, 547 (1st Cir.), cert. denied,

(2016),

we see no basis for reversal.

"[T]he linchpin of a reasonable sentence is a plausible

sentencing rationale and a defensible result." United States v.

Martin,

(1st Cir. 2008). And, "the greater the

variance, the more compelling the sentencing court's justification

must be." United States v. Guzman-Fernandez,

(1st Cir. 2016) (citation omitted). But, in light of the

particular details of Vázquez's criminal history and the

seriousness of the violations of the conditions of supervised

release, we can discern a plausible sentencing rationale for a

result that, while harsh, is defensible. That criminal history

showed that Vázquez had twice before engaged in criminal activity

shortly after he had been released from custody. Moreover, the

- 9 - violations of his conditions of supervised release included

Vázquez's firing a weapon in a public housing project soon after

his supervised release term began. Nor do the facts in mitigation

require us to reach a different conclusion. See United States v.

Vargas-García,

(1st Cir. 2015) ("While the

defendant points to some mitigating considerations, a sentencing

court is entitled to conduct an appropriate triage and weigh some

factors more heavily than others."). Thus, we find no abuse of

discretion.

IV.

The sentence is affirmed.

- 10 -