United States Court of Appeals For the First Circuit

No. 17-1098

UNITED STATES OF AMERICA,

Appellee,

v.

SANTOS DANIEL RONDÓN-GARCÍA,

Defendant, Appellant.

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

[Hon. Aida M. Delgado-Colón, U.S. District Judge]

Before

Howard, Chief Judge, Torruella and Kayatta, Circuit Judges.

Mary June Ciresi, on brief for appellant. John A. Mathews II, 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 23, 2018 TORRUELLA, Circuit Judge. In this sentencing appeal,

the Defendant-Appellant Santos Daniel Rondón-García ("Rondón")

insists that his eighteen-month sentence is both procedurally

and substantively unreasonable. After careful review, we

affirm.

I. Background

As this appeal concerns the imposition of the

defendant's sentence, we briefly summarize the relevant facts

and charted course of this case. We note that, because Rondón

pled guilty and does not challenge the factual background, we

draw those facts from the change-of-plea colloquy, the

unchallenged portions of the Presentence Investigation Report

("PSR"), and the transcript of the sentencing hearing. See

United States v. Fernández-Santos,

, 14 n.1 (1st Cir.

2017).

On September 8, 2015, agents from the Puerto Rico

Police Department's Bayamón Intelligence Division executed a

search warrant at Rondón's residence, where he lived with his

common law wife, Alitza Rodríguez-Castrillón ("Rodríguez"), and

their three children. After the agents detained Rondón and

Rodríguez in the living room, they searched the residence and

seized two notebooks containing drug ledgers, forty-one small

plastic zip-lock baggies containing a white powder that field

-2- tested positive for cocaine, two cellular telephones, one

fifteen-round capacity magazine fit for a 9mm Glock pistol

containing thirteen rounds of ammunition, and one crack pipe.

The police did not find a gun in the residence.

That same day, agents from the Bureau of Alcohol,

Tobacco, Firearms, and Explosives ("ATF") arrested Rondón.

After waiving his Miranda rights, Rondón admitted to selling the

cocaine, but stated that he did not remember the pistol magazine

being there and that it could belong to a friend. The ATF

agents also arrested and interviewed Rodríguez who, after

waiving her Miranda rights, stated that she did not know that

Rondón had the cocaine and that, about a month prior, she saw

Rondón walking in the street with a black firearm. She further

told the agents that she did not know if Rondón owned a gun, but

she had not seen him with a weapon in the house.

On September 9, 2015, Rondón was charged by Complaint

with possession with intent to distribute cocaine, in violation

of

(a)(1). On September 17, he was released on

bail into Rodríguez's custody and ordered to comply with

conditions of his release. On November 24, 2015, pursuant to a

plea agreement, Rondón waived indictment and pled guilty to an

Information charging him with one count of possession with

intent to distribute less than fifty grams of cocaine, in

-3- violation of

(a)(1) and (b)(1)(C). His plea

agreement with the government included a calculation of his

United States Sentencing Guidelines ("Guidelines") sentencing

range ("GSR"). The agreement set Rondón's base offense level at

twelve, and included a two-level reduction for acceptance of

responsibility, resulting in a final adjusted offense level of

ten. While the plea agreement included no stipulation as to

Rondón's Criminal History Category ("CHC"), it provided that,

should the district court deem Rondón to have a CHC of I, his

GSR would be six to twelve months of imprisonment. The parties

agreed that Rondón could request a sentence at the lower end of

the applicable range, while the government reserved the right to

recommend any sentence within the GSR. Rondón remained on bail

pending sentencing with Rodríguez as his third party custodian.

On November 30, 2016, Rodríguez alerted the U.S.

Probation Office, via letter, that she no longer wanted to be

Rondón's third party custodian because she had "decided to end

the strained relationship with [him]." The same day, the

probation officer filed with the court an informative motion to

this same effect. On December 19, 2016, Rodríguez was shot and

killed while driving in Guaynabo, Puerto Rico. The probation

officer filed another informative motion that same day to inform

the court of her death.

-4- On December 21, 2016, the U.S. Probation Office filed

its PSR with the district court. Like the plea agreement, it

determined that Rondón's offense level was twelve pursuant to

U.S.S.G. § 2D1.1(c)(14), and recommended a two-level reduction

for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1

(a), making Rondón's total offense level ten. The PSR specified

that while Rondón had no prior convictions, giving him a

criminal history score of zero, he had been previously arrested

on four occasions. The PSR concluded that, based on his total

offense level and CHC, Rondón's GSR was six to twelve months of

imprisonment. Neither party filed any objections to the PSR.

Rondón was sentenced on December 28, 2016. At

sentencing, Rondón's counsel argued for a sentence of six months

of imprisonment, at the low end of the GSR, while the Government

asked the court to impose a sentence of twelve months. In

making his pitch, his defense counsel emphasized that, as a

result of Rodríguez's death, Rondón would now be the lone parent

to his three children. He also pointed to Rodríguez's statements

to probation when interviewed for the PSR that Rondón was

dedicated to his children and requesting that the court show

leniency. The sentencing court responded that Rodríguez had

informed the probation office prior to her death that she no

longer wanted to be Rondón's third party custodian "because of

-5- verbal and physical threats and violence displayed by this

defendant against her. There is a written letter to that effect

in the hands of the Probation Officer, which is consistent with

the alleged charges of domestic violence that were [previously]

charged." For his part, Rondón's attorney claimed that he was

"not privy" to the specific information contained in Rodríguez's

letter.

The court then discussed the circumstances of

Rodríguez's murder, relayed to it by the probation officer,

noting that Rodríguez brought the children to Rondón's mother's

house "at his request," and then, after Rondón "asked her

specifically to go and pick the children up[,] . . .

coincidentally she [was] killed as she was close to the

residence. . . . She was murdered on her way to pick up the

children." Rondón's attorney responded that the details of

Rodríguez's death were "news to [him]," and that he "[didn't]

see that information." He did, however, acknowledge that he was

aware that Rodríguez had asked to be removed as Rondón's third

party custodian, and that the PSR contained information that she

was murdered while driving her vehicle in Guaynabo.

Following this exchange, in support of its

recommendation, the Government pointed out that Rondón was

selling drugs and possessed ammunition in the same apartment in

-6- which he lived with his kids and now-deceased wife. The court

then adopted the GSR as calculated in the PSR, but noted that it

"ha[d] its qualms" about whether those guidelines "accurately

reflect[ed] the components of the offense." After highlighting

some of the

factors, including Rondón's age,

dependents, education and employment history, health, and

substance use, the court began its dissection of Rondón's arrest

history. The court noted that "[t]his is Mr. Rondón's fifth

arrest and first conviction," and that he had been previously

arrested for violations of controlled substances laws,

explosives laws, weapons laws, and domestic violence.1 The court

proceeded to discuss each of the prior charges, summarizing the

allegations as written in the PSR, despite the fact that all

were dismissed for lack of probable cause or for speedy trial

violations.

As the court recited the accusations of Rondón's

dismissed 2010 domestic violence charges -– which stemmed from

alleged abuse of Rodríguez -– the court drew a parallel between

the 2010 allegations and the allegations purportedly contained

1 In his four previous arrests, Rondón was charged with nine separate offenses. Five of these counts were dismissed after no probable cause was found, and the remaining four were dismissed for violations of Rules 64 or 247 of the Puerto Rico Rules of Criminal Procedure -- which are related to speedy trial violations. See P.R. R. Crim. P. 64, 247.

-7- in Rodríguez's letter requesting to withdraw as Rondón's third

party custodian. Specifically, the court stated that the

alleged violence resulting in the 2010 charge was the "[s]ame

information she conveyed in 2016 shortly before she was killed[,

a]t the time that she was requesting to be relieved as third

party custody [sic]." At the conclusion of its recitation, the

court stated, "[T]his is not strange that the State system will

fail to carry over in cases such as this, and this is the reason

why this defendant has the fifth known arrest and the first time

that he is convicted is here." The court moved on to discuss

the nature of the offense in the current case, finding it

troubling that Rondón was selling drugs from the residence where

he lived with three young children. Finally, the court

considered the dangers to the community that drug dealing

creates and the violence that is commonly associated with it.

Summing up its considerations, the court then

explained:

[A] departure is warranted and reasons I already stated are on the record. More so pointing as to the sale of drugs and the violent conduct of this defendant and the sale of drugs and keeping drugs in a house and ammunition where there were minors, and what appears to be his violent tendencies.

Ultimately, the court sentenced Rondón to an upwardly variant

sentence of eighteen months of imprisonment. In its statement

of reasons, the court indicated that it departed from the

-8- Guidelines because of "Criminal History Inadequacy" and

"Aggravating/Mitigating Circumstances." This timely appeal

followed.

II. Discussion

"Appellate review of federal criminal sentences is

characterized by a frank recognition of the substantial

discretion vested in a sentencing court." United States v.

Flores-Machicote,

(1st Cir. 2013). This Court

reviews preserved challenges to the reasonableness of sentencing

decisions under an abuse of discretion standard. United States

v. Santiago-González,

(1st Cir. 2016); see also

Gall v. United States,

(2007). Our review is

limited to determining whether the district court's sentencing

determinations were reasonable. Gall,

. When

conducting that review, we first determine whether a sentence is

procedurally reasonable and then, if it is procedurally

adequate, evaluate its substantive reasonableness. Flores-

Machicote,

.

A. Procedural Reasonableness of Rondón's Sentence

We review the district court's method for arriving at

a sentence to ensure that the court did not commit any

"significant procedural error." Gall,

. Examples

of this include "failing to calculate (or improperly

-9- calculating) the [GSR], treating the Guidelines as mandatory,

failing to consider the [18 U.S.C.] § 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." Flores-Machicote,

(alterations in original) (quoting Gall,

). When a defendant fails to object to the procedural

reasonableness of a court's sentencing determinations at

sentencing, we review only for plain error. Santiago-González,

n.10; see also United States v. Cortés-Medina,

(1st Cir. 2016). "Plain error review is not

appellant-friendly. It '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.'" Cortés-Medina,

(quoting United States v. Duarte,

(1st

Cir. 2001)). Both parties agree that plain error is the correct

legal framework for this Court to employ here, as Rondón did not

object to his sentence on procedural or substantive grounds

before the district court. With this standard in mind, we turn

to the arguments.

-10- Rondón's primary contention is that his sentence was

procedurally flawed because the sentencing court relied on

impermissible and prejudicial factors. Specifically, Rondón

raises two errors: that the court gave undue weight to its

speculation of the circumstances surrounding Rodríguez's murder,

and that the court improperly considered his prior arrest

record. We will address each in turn, but we begin with the

principles.

When fashioning the appropriate sentence, a court must

consider numerous factors, including: the nature and

circumstances of the offense and the history and characteristics

of the defendant; the need for the sentence to reflect the

seriousness of the offense and promote respect for the law, to

provide deterrence, to protect the public, and to provide the

defendant with needed training and care; the kinds of sentences

available; the established sentencing range; and the need to

avoid disparities in sentencing.

(a)(1)-(4),

(6). In so doing, "[n]o limitation shall be placed on the

information concerning the background, character, and conduct of

a person convicted of an offense which a court of the United

States may receive and consider."

. During a

sentencing hearing, neither the Federal Rules of Evidence nor

the Sixth Amendment's confrontation clause applies, United

-11- States v. Bramley,

(1st Cir. 2017), and thus "the

sentencing court has broad discretion to accept hearsay evidence

at sentencing so long as the court supportably concludes that

the information has sufficient indicia of trustworthiness."

United States v. Rodríguez,

(1st Cir. 2003).

Yet, this discretion is not boundless and must comply

with due process considerations and the parameters of Federal

Rule of Criminal Procedure 32. Bramley,

; see also

Betterman v. Montana,

(2016) ("After

conviction, a defendant's due process right . . . is still

present. He retains an interest in a sentencing proceeding that

is fundamentally fair."). Due process requires that the

defendant be sentenced on information that is not false or

materially inaccurate. United States v. Curran,

(1st Cir. 1991). A sentencing court may consider both charged

and uncharged conduct of the defendant, but only if proven by a

preponderance of the evidence. United States v. González,

(1st Cir. 2017); see also United States v. Lombard,

(1st Cir. 1995). The defendant must be given

adequate notice of those facts prior to sentencing and the court

must "timely advise[] [the defendant] . . . that it heard or

read, and was taking into account [those facts]." United States

v. Acevedo-López,

(1st Cir. 2017) (second

-12- alteration in original) (quoting United States v. Berzon,

(1st Cir. 1991)). "[A] defendant must be provided

with a meaningful opportunity to comment on the factual

information on which his or her sentence is based," Berzon,

, unless that information "fall[s] within the garden

variety considerations which should not generally come as a

surprise to trial lawyers who have prepared for sentencing."

United States v. Pantojas-Cruz,

(1st Cir. 2015)

(internal quotation marks).

1. Ex Parte Communication

Rondón's first claim relies on the sentencing court's

discussion of the circumstances surrounding Rodríguez's murder,

which Rondón argues amounts to an insinuation by the court that

he was somehow involved and responsible. Citing due process

concerns with the court's consideration of supposedly unreliable

information, Rondón declares that "[t]he court's tacit innuendo

was prejudicial and founded on speculation and improperly before

the court." Rondón points to the district court's references to

information contained in Rodríguez's letter to probation, and to

the fact that Rodríguez was allegedly on her way to pick up the

children from his mother's house at Rondón's request when she

was murdered close to the residence. This information was

relayed to the court by probation, and, according to Rondón, was

-13- not provided to him in the PSR or in either of the informative

motions the probation officer filed.

As a threshold matter, the government argues that

Rondón has failed to explain why it was improper for the

district court to consider the letter and thereby has waived

that argument. We disagree. Before the sentencing court and in

his opening brief, Rondón and his counsel repeatedly proffered

that only the court and probation were privy to both the letter

submitted by Rodríguez and information that the probation

officer gave to the court pertaining to Rodríguez's death. When

the sentencing court first discussed Rodríguez's November 2016

letter, the following exchange took place:

[DEFENSE]: I am not privy to that information. Whatever information she gave to the Probation Officer I know about but that information has never been notified to me.

THE COURT: But you heard about that through the motion that was filed.

[DEFENSE]: But it only says an estranged relationship.

THE COURT: The letter alludes that she can no longer act as the third party custody [sic], that the residence belongs to her, that she has it rented and all of the belongings in there belong to her and he has been physically and verbally abusive and violent and she can no longer hold on to the situation.

[DEFENSE]: Well, I have no information to say whether that is true or false.

-14- Further, after the sentencing court relayed information that it

learned from the probation officer about Rodríguez's death,

counsel responded:

[DEFENSE]: That is news to me.

THE COURT: She was murdered on her way to pick up the children.

[DEFENSE]: But I don't see that information.

THE COURT: I am giving you the information, but the Presentence Report contains the information that she was killed on December 19 in Guaynabo.

[DEFENSE]: And she notified the Probation Officer that she did not want to continue as third party custody [sic], that I knew.

THE COURT: The new information is the one that the Probation Officer obtained concerning the fact that she had been requested to go in the morning hours to pick up the children and that is when she gets killed.

[DEFENSE]: That I cannot argue, Your Honor.

The very crux of Rondón's argument is that this information was

improperly before the sentencing court due to its unreliable

nature, and the fact that he had not been informed of it in

advance of sentencing. Therefore, while the claim is subject to

plain error review for Rondón's failure to object, we do not

find the argument waived.

Moreover, the government insists that all of the

factual information relevant to sentencing was disclosed to

Rondón, and that he had a reasonable opportunity to comment.

-15- But, while the informative motions and the PSR filed by the

probation officer stated that Rodríguez requested to withdraw as

Rondón's third party custodian because she "decided to end her

strained relationship with Mr. Rondón-García," none of these

filings contained information that the third-party-withdrawal

request was made due to allegations of physical or verbal abuse.

The letter to probation was never itself entered into the record

and those facts were not incorporated into the PSR. Cf.

Acevedo-López,

(finding no lack of notice where

a summary of the incident at issue was contained in PSR and the

challenged portions of the defendant's detention hearing were

part of the record). We also note that the PSR contained

information that Rodríguez was shot in the head while driving

her vehicle on December 19, 2016, in Guaynabo, but contained

nothing suggesting Rondón's potential involvement in her murder,

a possibility that the sentencing court implied.

A sentencing court using documents outside of the PSR,

and that are therefore not subject to Federal Rule of Criminal

Procedure 32, "should either make clear that the document is not

being used for its factual content, or should disclose to the

defendant as much as was relied upon, in a timely manner, so as

to afford the defendant a fair opportunity to examine and

challenge it." Acevedo-López,

(quoting Curran,

-16-

). While we have recognized the sentencing

court's right to consult ex parte with a probation officer to

receive advice, "if the probation officer reveals new facts

relevant to the sentencing calculus, those facts cannot be

relied upon by the sentencing court unless and until they are

disclosed to the parties and subjected to whatever adversarial

testing may be appropriate." Bramley,

. Providing

new factual information in response to a defendant's sentencing

argument does not provide the defendant "a fair opportunity to

examine and challenge it."

at 6 (quoting Curran,

); see also Berzon,

; U.S.S.G. § 6A1.3(a).

Here, as noted above, the evidence challenged is absent from the

record and was not provided prior to the sentencing hearing.

Given the court's discussion of the evidence and its explanation

that its departure from the GSR was based, at least in part, on

the defendant's "violent conduct" and "violent tendencies," the

record suggests that the allegations of abuse were at least a

factor in its sentencing calculus. Coupled with defense

counsel's repeated rejoinders that he had not been provided

notice of the information, we find the failure to provide this

factual information to the defendant to be erroneous.

Further, without more, we cannot say this information

had a sufficient indicia of reliability to meet the requisite

-17- preponderance of the evidence standard. While hearsay is both

an acceptable and often important part of the sentencing

process, see Acevedo-López,

; United States v.

Hankton,

(7th Cir. 2005), and the court may

use dependable information even if not subjected to cross-

examination, United States v. Cintrón-Echautegui,

(1st Cir. 2010), a defendant must have "notice prior to its use

and . . . the opportunity to challenge its reliability." United

States v. Cruz,

(1st Cir. 1997). As previously

noted, the allegations of physical and verbal abuse contained in

the letter were not previously provided to the defendant, nor is

there anything in the record corroborating these new

allegations. Cf. United States v. Ramírez-Negrón,

(1st Cir. 2014) (hearsay testimony contained adequate indicia

of reliability when accompanied by agent's personal observations

and knowledge). Nor can we say that Rodríguez's letter was

"thorough and replete with details" without the benefit of

seeing the letter. Rodríguez,

. As to the fact

that Rodríguez and Rondón coordinated a drop-off of their

children prior to her death, while the district court stated

that it was alerted to the information by the probation officer,

the record is unclear as to where the probation officer obtained

this information. More importantly, Rondón was only told of

-18- this information at sentencing and was not given a meaningful

opportunity to challenge the reliability of this unfavorable

information. See United States v. Zavala-Martí,

(1st Cir. 2013). Use of this information constituted a

clear error of law.2

Rondón must make it past two additional hurdles of

plain error review. Finding that a claimed error affected a

defendant's substantial rights requires a showing that, there is

"a reasonable probability that, but for the error, the district

court would have imposed a different, more favorable sentence."

United States v. Perazza-Mercado,

(1st Cir.

2009) (quoting United States v. Gilman,

(1st

Cir. 2007)).3 We have before us not a run-of-the mill within-

guidelines sentence, but rather an upward variance not requested

by the Government. In its statement of reasons, the court noted

that its basis for the departure was the "aggravating

2 Rondón also raises an insufficiency of the evidence argument, positing that "there was no evidence to assume that [he] was responsible for [the] murder." However, as we have found the use of this information to be improper on both notice and reliability grounds, we need not address his sufficiency-of-the- evidence argument at this time. 3 We have applied the "reasonable probability" test in sentencing "departure" cases, see, e.g., United States v. Wallace,

(1st Cir. 2006), and in cases like this one in which a "variant" sentence was imposed, see, e.g., United States v. Rivera-González,

(1st Cir. 2016).

-19- circumstances of the offense" and its belief that the

defendant's criminal history category was underrepresented in

prior cases in state court. It is clear from our review of the

sentencing transcript, see United States v. Vásquez-Martínez,

(1st Cir. 2016) (stating that an appellate

court can make reasonable inferences from the district court

record), that those aggravating circumstances to which the

sentencing court was referring include the fact that Rondón was

keeping and selling drugs in a house where minors were present,

that Rondón had ammunition in the house and was seen carrying a

firearm, and the prevalence of "drug point[s]" within the

metropolitan area of Puerto Rico. However, the court also

expressly stated that it relied on "all of the[] factors"

previously discussed, which included -- at great length -- the

improperly admitted information.

But even assuming that the district court would have

imposed a more favorable sentence, our discretionary correction

of the error in this case is not warranted. See United States v.

González-Castillo,

, 84 (1st Cir. 2009) (exercising

discretion to correct plain error where "fairness of appellant's

sentence was impaired"); United States v. Mangone,

(1st Cir. 1997) ("Our final step in the [plain error]

analysis is to determine whether we should, in our discretion,

-20- order correction of this plain error that affects substantial

rights." (citing United States v. Olano,

(1993))). While the error that occurred at Rondón's sentencing

arguably affected the fairness, integrity, or public reputation

of the judicial proceeding, see Mangone,

, there

are at least two considerations that suggest that we should not

intercede. First, although Rondón belatedly acknowledges the

applicability of the plain error standard in his reply brief, he

makes no argument addressing this fourth prong of that standard,

a failure which is itself sufficient to ground our declining to

exercise our discretion to correct the error. See, e.g., United

States v. Steed,

(1st Cir. 2018). Moreover,

with respect to the fourth prong, a simple calculation reveals

that Rondón has nearly completed the community corrections

center portion of his incarcerative sentence and is about to

begin his statutorily-mandated period of supervised release. We

believe it most unlikely that the district court on remand would

adjust the period of Rondón's transitional incarceration at this

late juncture. Cf. Wallace,

(noting that the

district court "might (although by no means must) calculate a

[different] sentence upon remand"). Accordingly, while we find

that the district court should have provided Rondón notice of

its intent to use the ex parte information obtained from

-21- probation and allowed him an opportunity to rebut it, we choose

not to intervene.4

2. Rondón's Arrest Record

Rondón next objects to the court's use of his prior

arrests as a basis for its variance from the GSR, claiming that

the court clearly assumed the allegations underlying those

arrests to be true. As all prior charges against him were

dismissed, Rondón claims that the district court lacked any

reliable, factual grounds to justify its consideration of those

arrests, and that the underlying allegations failed to meet the

preponderance of the evidence standard.

Rondón cannot demonstrate that it was plain error for

the court to reference his prior arrests. The Guidelines state

that "prior similar adult criminal conduct not resulting in a

criminal conviction" may form the basis for an upward departure

from the guideline range, but that a "prior arrest record itself

shall not be considered for purposes of an upward departure

4 We take this opportunity, however, to encourage appellate counsel to inform us of the stakes early during the appellate process in appropriate cases. In a case in which counsel has identified a potentially serious sentencing error affecting a sentence that is likely to be served prior to the completion of the appellate process, a motion to expedite briefing and consideration is not unwelcome. Cf. Burns v. United States,

, 154 n.7 (1991) (Souter, J., dissenting) (identifying appellate difficulties for defendants serving modest sentences after erroneous sentencing decisions).

-22- under this policy statement." U.S.S.G. § 4A1.3(a)(2)(E), (a)(3).

Further, this Court has stated that a district court may rely on

the information contained in a PSR at sentencing:

"Generally, a PSR bears sufficient indicia of reliability to permit the district court to rely on it at sentencing." United States v. Taylor,

(5th Cir. 2001). The defendant is free to challenge any assertions in the PSR with countervailing evidence or proffers, in which case the district court is obliged to resolve any genuine and material dispute on the merits. But if the defendant's objections to the PSR are merely rhetorical and unsupported by countervailing proof, the district court is entitled to rely on the facts in the PSR.

United States v. Olivero,

(1st Cir. 2009)

(quoting United States v. Cyr,

(1st Cir.

2003)). Here, the district court invoked Rondón's arrest

history as contained in his PSR, to which Rondón did not object.

Moreover, his PSR contained detailed facts underlying the

individual charges listed in his arrest record. This failure to

object constitutes a waiver of Rondón's right to challenge the

information contained in the PSR. See United States v. Serrano-

Mercado,

(1st Cir. 2015); United States v.

Turbides-Leonardo,

(1st Cir. 2006); see also

United States v. Ocasio-Cancel,

(1st Cir.

2013) (stating that, when the defendant did not object to the

PSR's discussion of dismissed charges against him, "the district

court may treat the fact as true for sentencing purposes.").

-23- This Court, however, has recently cautioned district

courts against using arrests not resulting in convictions to

speculate about or infer unlawful behavior unless there is proof

by a preponderance of the evidence of the conduct initiating

these arrests or charges. Cortés-Medina,

("Today, we caution district courts against placing weight on

such speculation."). See also United States v. Gallardo-Ortiz,

(1st Cir. 2012) ("We have cautioned against

district courts relying on mere arrests as indicative of a

defendant's character to justify an upward departure from the

GSR since a criminal charge alone does not equate with criminal

guilt of the charged conduct."). And here, the district court

clearly did give Rondón's criminal history weight, methodically

discussing the entries of his arrest record, concluding that

"this is not strange that the State system will fail to carry

over in cases such as this, and this is the reason why this

defendant has the fifth known arrest and the first time that he

is convicted is here." Further, the district court proclaimed

that the defendant's criminal history category, involving no

prior convictions, underrepresented his past wrongdoing. "[A]

court imposing incarceration for a later crime cannot simply

presume that past charges resolved without conviction . . . are

attributable to flawed or lax prosecutorial or judicial systems

-24- rather than the defendant's innocence." Cortés-Medina,

(Lipez, J., dissenting).

But, Rondón's argument once again must succumb to the

heavy burden of plain error review. In United States v.

Delgado-Sánchez, while acknowledging that "when the occasion

presents itself, we very well may sustain a preserved challenge

to a sentence that treats arrests as proof of unlawful conduct,"

we found that "[the defendant's] plain-error appellate challenge

provides no such occasion."

(1st Cir. 2017).

Plain error review requires us to reverse only where a lower

court's error is clear or obvious in light of the prevailing

law, but "Cortés-Medina held only that the law on this question

was unclear."

Thus, while we once again express our

distaste for a district court's reliance on a defendant's record

of prior arrests and charges without convictions, we find that

the court's use of the purported criminal conduct underlying

Rondón's criminal charges, to which he did not object, did not

amount to clear error. Rondón's second claim must suffer the

same fate as his first.

We hold that, on plain error review, the procedural

errors in Rondón's sentence do not warrant reversal. We move

next to Rondón's claim of substantive unreasonableness.

-25- B. Substantive Reasonableness of Rondón's Sentence

Rondón also did not preserve his substantive

reasonableness claim below. Because the standard of review for

unpreserved challenges to the substantive reasonableness of a

sentence remains unclear, we will give Rondón the benefit of the

doubt and review under the more favorable abuse of discretion

standard. See United States v Ruiz-Huertas,

(1st Cir. 2015).

"[S]ubstantive unreasonableness encompasses whether

the sentence survives scrutiny when examined under the totality

of the circumstances." Santiago-González,

(citing United States v. Del Valle-Rodríguez,

(1st Cir. 2014)). A sentence is substantively reasonable if it

rests on "a plausible sentencing rationale and a defensible

result." United States v. Martin,

(1st Cir.

2008). "'[S]entencing becomes a judgment call' involving an

intricate array of factors." Flores-Machicote,

(quoting Martin,

). We only reverse where the

sentence is outside of the "expansive universe of reasonable

sentences." United States v. King,

(1st Cir.

2014).

Rondón claims that the court "gave substantial weight

to invalid, unsubstantiated grounds to enhance [his] sentence."

-26- As noted above, see supra Part II(A)(1), some of the grounds

upon which the court relied during sentencing were indeed

invalid. However, the record shows that the district court also

relied on several aggravating circumstances supported by the

record in imposing its upward variance. The district court

pointed to Puerto Rico's drug distribution problem, see United

States v. Zapata-Vázquez,

(1st Cir. 2015)

("[T]he sentencing court may take into account the

characteristics of the community in which the crime took place

when weighing the offense's seriousness . . ."), the nature of

the charged offense, the fact that Rondón kept drugs and

ammunition in his home where his three children lived, and the

presence of paraphernalia indicating that this was not a single

incident. The district court weighed the

factors, highlighting Rondón's age, education, health, substance

use, and possession of a firearm. Setting aside the invalid

grounds, we find that an eighteen-month sentence would still

have been well within the universe of reasonable sentences for

this offense in light of all of the above circumstances. While

Rondón may disagree with the weight given to those aggravating

factors, "[w]eighing of those factors is left largely within a

sentencing court's discretion." United States v. González-

Rodríguez,

(1st Cir. 2017).

-27- Finding the sentence reasonable, we hold that the

district court did not abuse its discretion.

III. Conclusion

For the foregoing reasons, the sentence is affirmed.

Affirmed.

-28-