United States Court of Appeals For the First Circuit

No. 18-1732

UNITED STATES OF AMERICA,

Appellee,

v.

KEVIN JONIEL MÉNDEZ-BÁEZ,

Defendant, Appellant.

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

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

Before

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

Yassmin Gonzalez-Velez and Gonzalez Velez Law Offices, PSC on brief for appellant. Julia M. Meconiates, 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.

June 17, 2019 HOWARD, Chief Judge. Appellant Kevin Joniel Méndez-Báez

appeals his incarcerative sentence of 60 months, 19 months above

the upper end of the advisory guidelines sentencing range. He

argues that the district court erred procedurally in not

considering all of the

(a) factors and

substantively in imposing too harsh a sentence. After careful

review, we affirm.

I. BACKGROUND

On August 24, 2017, Puerto Rico police pulled over a car

after observing its apparently illegal window tint. The driver,

Méndez, produced a learner's driving permit and told an officer

that he did not have the car's registration information. While

inspecting the vehicle's registration window decal, an officer

observed an extended ammunition magazine attached to a firearm on

the floor of the passenger side of the car. The police ordered

Méndez and his passenger, Jorge Roberto Rivera-Báez, out of the

vehicle. Neither Méndez -- who had been serving a term of

probation for a prior felony conviction -- nor Rivera had a

firearms permit. The officers placed the two men under arrest and

searched the vehicle, discovering that the firearm was a .40

caliber Model 23 Glock pistol with an extended 29-round magazine

attached, loaded with 22 rounds of ammunition. The police also

found two fully loaded 13-round magazines. The pistol had a chip

that modified it to fire as a fully automatic weapon. After

- 2 - running the license plates through their database, the officers

learned that the car had been flagged as "disappeared" by a

financial institution. At the station, Rivera -- the passenger -

- stated that the pistol, the magazines, and the car belonged to

him.

A grand jury charged Méndez with being a felon in

possession of a firearm and ammunition in violation of

(g). He pled guilty. The pre-sentence report (PSR) prepared

by the probation office determined that Méndez's total offense

level (TOL) was 19 and his criminal history category (CHC) was II,

because of his previous convictions for attempted murder and

related firearm offenses and because he committed the instant

offense while serving a term of probation. Méndez's guidelines

sentencing range (GSR) was calculated to be 33 to 41 months.

In his sentencing memorandum, Méndez argued for a

sentence at the low end of the GSR, noting that Rivera had admitted

ownership of the gun, ammunition, and the car, that he had long

suffered from an often-untreated psychological condition, and that

he was simply in the "wrong place with the wrong person at the

wrong time." The government, meanwhile, argued for a sentence at

the upper end of the GSR, highlighting that Méndez was the driver

of the car that had been flagged as disappeared, that he committed

the instant offense while on probation for attempted murder and

- 3 - related firearms offenses, and that his prior sentence of probation

had not deterred Méndez from criminal activity.

The district court accepted the PSR's calculated GSR.

The judge stated that he had considered the

(a)

factors and the sentencing memorandum filed by Méndez. The court

focused particularly on the fact that the firearm was modified to

be fully automatic, explaining that "[s]hort of bombs, missiles,

and biochemical agents, we can conceive of few weapons that are

more dangerous than machine guns," and that such weapons "are not

typically possessed by law-abiding citizens for lawful purposes."

The court also noted Méndez's age, education, unemployment,

history of mental health treatment, and lack of substance abuse

history. The court concluded that an above-guidelines sentence

was warranted and sentenced Méndez to 60 months' imprisonment.

Méndez made no objection to his sentence at the time it was

imposed, but subsequently filed this appeal.

II. ANALYSIS

Méndez argues on appeal that the district court

committed procedural error by failing to consider critical factors

in sentencing. He further argues that his variant sentence was

substantively too harsh. Neither of these challenges is

meritorious.

- 4 - A.

A generous reading of Méndez's brief suggests a

procedural challenge to his sentence based on the district court's

alleged failure to consider certain salient factors, specifically:

(1) his early acceptance of responsibility for his actions and (2)

the fact that Rivera, the passenger, admitted to owning the

firearm, ammunition, and the car. Méndez failed to lodge these

objections below. When a party has not preserved the procedural

issues raised on appeal by objecting in the district court, we

review only for plain error. See United States v. González-

Barbosa,

(1st Cir. 2019). This requires that

Méndez show (1) that an error occurred, (2) which was clear or

obvious, and which not only (3) affected his substantial rights,

but also (4) seriously impaired the fairness, integrity, or public

reputation of the judicial proceedings.

Méndez has not made

such a showing.

Although the sentencing court must consider all the

§ 3553(a) factors, see United States v. Martin,

(1st Cir. 2008), it need not verbalize its evaluation of each

factor, United States v. Reyes-Rivera,

(1st Cir.

2016). Moreover, "the fact that the court stated that it had

considered all the section 3553(a) factors is entitled to some

weight." United States v. Dávila-González,

(1st

Cir. 2010). Here, contrary to Méndez's implication, the district

- 5 - court explicitly considered his early acceptance of responsibility

and accordingly granted him a three-level reduction in his TOL on

that basis. Moreover, the district court stated that it had

considered the § 3553(a) factors and had considered Méndez's

sentencing memorandum. The sentencing memorandum detailed all of

the mitigating factors highlighted by Méndez, including Rivera's

admission of ownership of the firearm, ammunition, and the car.

"A criminal defendant is entitled to a weighing of the section

3553(a) factors that are relevant to [his] case, not to a

particular result." Id. at 49 (alteration in original) (quoting

United States v. Carrasco-De-Jesús,

(1st Cir.

2009)). There being no clear or obvious error in the sentencing

court's explication of the factors that it considered, Méndez's

procedural challenge fails.

B.

Méndez also argues that his sentence is substantively

unreasonable because it is too harsh given the totality of the

circumstances surrounding his offense and conviction. He urges us

to reconsider the weighing of various sentencing factors,

including those mentioned above, his tumultuous family life during

his childhood, his remorse, and the fact that his crime was

victimless.

Méndez did not preserve this challenge below. It remains

unclear whether we review unpreserved claims of substantive

- 6 - unreasonableness in sentencing for abuse of discretion or plain

error. See United States v. Reyes-Gomez, No. 17-1757, slip op. at

5-6, n.3 (1st Cir. June 11, 2019) (noting that the Supreme Court

recently granted certiorari on the issue in Holguin-Hernandez v.

United States, No. 18-7739 (June 3, 2019)). We find no occasion

to address this question, for even under the more favorable abuse

of discretion standard, see United States v. Rondón-García,

(1st Cir. 2018), Méndez's challenge fails.

Although the court imposed an upwardly variant sentence,

under abuse of discretion review the sentence "will survive a

challenge to its substantive reasonableness as long as it rests on

a 'plausible sentencing rationale' and reflects a 'defensible

result.'" United States v. Pérez,

(1st Cir.

2016) (quoting Martin,

). The instant sentence

exceeded the top of the GSR by 19 months. "[W]e have recognized

that the greater the extent of a variance, 'the more compelling

the sentencing court's justification must be.'" United States v.

de Jesús,

(1st Cir. 2016) (quoting United States

v. Del Valle-Rodríguez,

(1st Cir. 2014)).

Here, the court adequately justified the sentence

through plausible reasoning, relying on various § 3553(a) factors

and Méndez's sentencing memorandum. The court specifically noted

the danger and destructive potential of automatic weapons. It

also relied on a need for heightened deterrence, given that Méndez

- 7 - committed the instant offense while on probation for other

offenses. In these situations, we afford "due deference to the

district court's decision that the § 3553(a) factors, on a whole,

justify the extent of the variance." de Jesús,

(quoting Gall v. United States,

(2007)).

Therefore, Méndez cannot show that the sentencing court abused its

discretion and we must reject his challenge.

III. CONCLUSION

For the foregoing reasons, the sentence imposed by the

district court is hereby AFFIRMED.

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