United States Court of Appeals For the First Circuit

No. 18-1761

UNITED STATES OF AMERICA,

Appellee,

v.

JONATHAN FRANK MIRANDA-DÍAZ,

Defendant, Appellant.

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

[Hon. Gustavo A. Gelpí, U.S. District Judge]

Before

Howard, Chief Judge, Selya and Lynch, Circuit Judges.

Robert Millán on brief for appellant. Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Thomas F. Klumper, Assistant United States Attorney, Senior Appellate Counsel, on brief for appellee.

November 5, 2019 SELYA, Circuit Judge. Defendant-appellant Jonathan

Frank Miranda-Díaz pleaded guilty to one count of possession of a

firearm as a convicted felon. See

(g)(1). Varying

upward from the applicable guideline sentencing range (GSR), the

district court sentenced the appellant to a 36-month term of

immurement. Taking aim at the sentencing court's consideration of

both the conduct underlying a dismissed charge and a prior

controlled substance conviction, the appellant submits that his

sentence is both procedurally and substantively unreasonable.

Concluding that the sentence is sound, we affirm.

I. BACKGROUND

We briefly rehearse the relevant facts and travel of the

case. When — as in this instance — a sentencing appeal follows a

guilty plea, we draw the facts "from the change-of-plea colloquy,

the unchallenged portions of the presentence investigation report

(PSI Report), and the record of the disposition hearing." United

States v. Dávila-González,

(1st Cir. 2010) (quoting

United States v. Vargas,

(1st Cir. 2009)).

On the morning of May 10, 2017, police officers in

Carolina, Puerto Rico, carried out a traffic stop after observing

the appellant drive through a red light. Upon approaching the

appellant's vehicle, the officers spotted a firearm near the

appellant's thigh. Once the appellant admitted that he lacked a

license to carry a firearm, the officers arrested him. At the

- 2 - same time, they seized a .40 caliber Glock pistol loaded with nine

rounds of ammunition and an additional Glock magazine (also loaded

with nine rounds of ammunition) from the vehicle.

During an interview later that morning with Bureau of

Alcohol, Tobacco, Firearms and Explosives (ATF) agents, the

appellant stated that he had obtained the firearm from a friend

the day before and that he was on his way to purchase drugs for

his personal consumption when stopped. He volunteered that he had

arrived in Puerto Rico six days earlier from New York, where he

was on parole "for possession of [one] kilogram of cocaine." A

background check soon revealed that the appellant had previously

been convicted of a crime punishable by imprisonment for more than

one year.

In due course, a federal grand jury sitting in the

District of Puerto Rico returned a single-count indictment,

charging the appellant with possession of a firearm as a convicted

felon. See

(g)(1). After some preliminary

skirmishing, not relevant here, the appellant pleaded guilty to

this charge.

At the disposition hearing, the district court heard

arguments of counsel and the appellant's allocution. Emphasizing

the heightened need for deterrence in light of the appellant's

earlier brushes with the law, the government requested a 21-month

prison sentence. Before the appellant's counsel spoke, the court

- 3 - suggested that she address its concern that the appellant was an

individual for whom "the guidelines do not necessary make justice"

and that, therefore, the case "perhaps would warrant an upward[]

variance." In response, counsel noted the appellant's successful

completion of a diversionary drug-treatment program, his work as

a barber while in prison, and the likelihood that he would face an

additional state sentence for violating the conditions of his

parole. In light of these considerations, she deemed a 17-month

prison sentence sufficient. Without objection, the district court

adopted the guideline calculations limned in the PSI Report, set

the appellant's total offense level at 12, and placed him in

criminal history category III. These uncontested determinations

yielded a GSR of 15 to 21 months. After mulling the sentencing

factors elaborated in

(a), the court varied upward

and imposed a 36-month term of immurement.

In the process, the court explained its sentencing

rationale. To begin, the court observed that over the previous

"five [to] six years," the appellant had squandered "opportunity

after . . . opportunity after . . . opportunity" to live in a law-

abiding manner. The court mentioned three relevant data points to

undergird this observation.

First, the court referenced a 2011 robbery charge in

Puerto Rico. Drawing on factual details that the appellant himself

had reported to the probation officer, the court noted that this

- 4 - charge had been reclassified as an illegal appropriation charge

and then dismissed following the appellant's completion of a

diversionary drug-treatment program.1 But, the court observed,

the appellant had absconded from the drug-treatment program at one

point. According to unchallenged statements in the PSI Report, he

was arrested and ordered to serve four months in prison after his

abscondment. He subsequently completed the program only after his

release from that prison stay.

Second, the court noted that in 2016 — only two years

after securing the dismissal of his illegal appropriation charge

— the appellant was found in possession of one kilogram of cocaine,

was charged with possession of a controlled substance in the third

degree, and was ultimately sentenced by a New York court to serve

an incarcerative term, followed by parole.2 Importantly, the

appellant admitted to ATF agents that he was "on parole in New

York for possession of [one] kilogram of cocaine" when he was

arrested.

1 At the disposition hearing, the appellant described the robbery charge as "expunged." On appeal, though, he describes the charge as "dismissed." This latter description is consistent with both the PSI Report and the sentencing court's characterization. 2 The appellant describes this charge as having been "reclassified" from an "initial charge of possession of one kilo[gram] of cocaine" to possession of a controlled substance. Withal, the PSI Report contains no indication that the appellant was ever initially charged with any offense other than possession of a controlled substance in the third degree; and we discern no concrete support elsewhere in the record for the appellant's characterization of this charge as having been "reclassified."

- 5 - Third, the court discussed the circumstances surrounding

the offense of conviction. Again drawing on the unchallenged PSI

Report, the court observed that, during the pendency of his parole,

the appellant had requested and been granted leave to complete his

parole in Puerto Rico. Moreover, the court expressed concern that

the appellant had failed to report to the probation office upon

his arrival in Puerto Rico. To cap the matter, the court noted

that the appellant, despite being fully aware of the conditions of

his parole, had been found with a firearm on his way to purchase

drugs mere days after his arrival in Puerto Rico, in brazen

violation of those conditions. The court concluded that the

appellant "simply [did] not respect the law or respect the

conditions which . . . [were] placed on [him]." The appellant's

continued criminality, in the court's view, bespoke a troubling

"trajectory over the last couple of years."

The court went on to stress the seriousness of the crime

and community-related factors, concluding that the appellant's

offense was "more serious than just a simple mathematical

calculation" and warranted an upward variance of 15 months above

the top of the GSR. Consequently, the court imposed a 36-month

incarcerative sentence.

After the court pronounced the sentence, the appellant

objected to it in general terms as both procedurally and

substantively unreasonable. This timely appeal followed.

- 6 - II. ANALYSIS

Appellate review of a criminal defendant's claims of

sentencing error involves a two-step pavane. See United States v.

Matos-de-Jesús,

(1st Cir. 2017). Under this

bifurcated framework, we first examine the validity vel non of any

claims of procedural error. See

If the sentence passes

procedural muster, we then examine any challenge to its substantive

reasonableness. See

Here, the appellant attacks his sentence

both procedurally and substantively. We address each line of

attack in turn.

A. Procedural Reasonableness.

The appellant's procedural plaint focuses on the

district court's treatment of his dismissed illegal appropriation

charge and his prior controlled substance conviction. Although

the appellant objected that the sentence was "procedurally

unreasonable" after the court imposed sentence, his objection was

wholly generic and made no mention of the discrete claims of

procedural error that he now unveils. Such general objections are

inadequate to preserve specific challenges to the sentencing

court's particularized findings because they do not afford the

sentencing court either notice of the asserted claims of error or

an opportunity to rectify those claimed errors. See United States

v. Soto-Soto,

, 448 n.1 (1st Cir. 2017); United States

v. Ahrendt,

(1st Cir. 2009). Thus, our review of

- 7 - the appellant's procedural claims is for plain error. See Matos-

de-Jesús,

. Under this rigorous standard, the

appellant must 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 judicial proceedings." United States v.

Duarte,

(1st Cir. 2001). In this instance, the

first element of the four-part test proves fatal to the appellant's

procedural challenge.

We start with the appellant's contention that the

district court "elasticized his criminal history beyond its

limits" by considering a 2011 robbery charge that had been

reclassified to an illegal appropriation charge and eventually

dismissed following his completion of a diversionary drug-

treatment program. In mounting this contention, the appellant

relies primarily on our decision in United States v. Marrero-

Pérez,

(1st Cir. 2019). There, we reviewed an upward

departure imposed largely on the basis of prior arrests that had

not resulted in convictions, most of which were unsupported by

reliable independent evidence that the underlying conduct had

occurred. See

. We held that error occurs when a

sentencing court imposing an upward departure "relies on an arrest

report, without some greater indicia of reliability that the

conduct underlying the arrest took place."

.

- 8 - Consequently, district courts should afford "no weight" to

"arrests not buttressed by convictions or independent proof of

conduct" when fashioning departures.

at 22 (citing U.S.S.G.

§ 4A1.3(a)(3)).

The appellant's reliance on Marrero-Pérez is mislaid.

For one thing, Marrero-Pérez involved an upward departure, not —

as here — an upward variance. See United States v. Rodríguez-

Reyes,

(1st Cir.) (distinguishing Marrero-Pérez

on this ground), cert. denied, ___ S. Ct. ___ (2019). The

difference between the two is hardly semantic. A "departure" is

a "term of art under the Guidelines and refers only to non-

Guidelines sentences imposed under the framework set out in the

Guidelines."

at 567 (quoting United States v. Aponte-Vellón,

(1st Cir. 2014)). A variant sentence, by contrast,

"result[s] from a court's consideration of the statutory

sentencing factors enumerated in

(a)."

(quoting Aponte-Vellón,

).

This is not the only basis on which we find Marrero-

Pérez inapposite. Even if we assume for argument's sake that

Marrero-Pérez has bite beyond the departure context, the rule of

that case provides that error occurs only when the sentencing court

"equate[s] arrest with guilt" or otherwise gives "weight" to or

"relies on" bare arrest records without sufficiently reliable

corroborating evidence.

. No error occurs when

- 9 - the sentencing court "merely refer[s]" to the defendant's

dismissed charges "in the course of relying on certain conduct

that took place in connection with the dismissed charges" and that

conduct is described in unchallenged portions of the PSI Report.

United States v. Mercer,

(1st Cir. 2016) (emphasis

omitted). Where conduct surrounding a dismissed charge is "set

forth in undisputed portions of the [PSI Report]," the district

court is "entitled to rely on that conduct when sentencing" the

defendant. Id.; see Rodríguez-Reyes,

(noting that

Marrero-Pérez did not purport to overrule Mercer and similar

precedents). This is such a case.

The court below did not equate the appellant's arrest

for robbery with guilt. Nor did it indicate that it was giving

any impermissible weight to either the arrest or the conduct that

gave rise to it. Rather, the court — drawing on the appellant's

own admissions in the unchallenged PSI Report — simply described

the basic procedural background of the illegal appropriation

charge in the course of discussing conduct related to that charge.

This conduct included the appellant's abscondment from the

diversionary drug-treatment program and his subsequent possession

of one kilogram of cocaine just two years after securing the

dismissal of the illegal appropriation charge. These admitted

facts were relevant to the sentencing calculus: they strongly

supported the court's articulated concern that the appellant

- 10 - "simply [did] not respect the law," despite having squandered

"several opportunities" during his various encounters with the

criminal justice system.

Moreover, it is common ground that a sentencing court

"may take into account any [relevant] information that has

sufficient indicia of reliability." United States v. Díaz-Arroyo,

, 130 n.3 (1st Cir. 2015). As a general rule, the PSI

Report "bears sufficient indicia of reliability to permit the

district court to rely on it at sentencing." United States v.

González-Rodríguez,

(1st Cir. 2017) (quoting

United States v. Cyr,

(1st Cir. 2003)); see United

States v. Ocasio-Cancel,

(1st Cir. 2013) ("When a

fact is set out in a presentence investigation report and is not

the subject of a timely objection, the district court may treat

the fact as true for sentencing purposes."). This case falls

comfortably within the sweep of the general rule. Within the

circumstances at hand, we discern no error — let alone plain error

— in the district court's brief recitation of procedural facts

furnished by the appellant himself and adumbrated in the

unchallenged PSI Report, notwithstanding that those facts related

to a dismissed charge.

Let us be perfectly clear. "Reliance on bare arrests —

unexplained in the [PSI Report] or elsewhere in the district court

record and 'not buttressed' by 'some greater indicia of

- 11 - reliability' — can indeed be problematic, at least for an upward

departure."3 Rodríguez-Reyes,

(quoting Marrero-

Pérez,

). In the same vein, 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." United States v. Gallardo-Ortiz,

(1st Cir. 2012). But nothing in our precedents

forbids a sentencing court's mere mention of the undisputed facts

surrounding a dismissed charge as part of a broader assessment of

the defendant's troubling trajectory regarding his serial

encounters with the criminal justice system. See Rodríguez-Reyes,

n.4. Thus, we discern no procedural error — plain

or otherwise — in the district court's consideration of the conduct

surrounding the appellant's dismissed illegal appropriation

charge. The court's discussion of the charge was confined to facts

3We have significant doubt that the appellant's dismissed illegal appropriation charge was equivalent to a bare arrest record or other dismissed criminal charge, neither of which "equate with criminal guilt of the charged conduct." United States v. Gallardo- Ortiz,

(1st Cir. 2012). The government plausibly argues that the appellant was required to plead guilty to the illegal appropriation offense as a condition of participation in the diversionary drug-treatment program. Puerto Rico law appears to support this agrument. See P.R. Laws Ann. tit. 34A, app. II, Rule 247.1 (stating that a court may, "without returning a verdict of guilty," stay all criminal proceedings and place a defendant in a diversionary treatment program only "[o]nce the defendant has pleaded guilty"). In the last analysis, though, we need not reach this argument — and we take no view of it.

- 12 - that the appellant admitted, which had been incorporated into the

unchallenged PSI Report.

There remains the appellant's skeletal contention that

the district court committed procedural error by considering his

prior conviction for possession of a controlled substance in the

third degree. His brief devotes no more than a single sentence to

this contention, stating conclusorily that the district court

somehow "committed an error in considering the initial charge of

possession of one kilo[gram] of cocaine that was reclassified to

criminal possession of a controlled substance in a New York [s]tate

conviction." Putting to one side the question of whether the

appellant was ever initially charged with "possession of one

kilo[gram] of cocaine," we find that the appellant has waived this

contention.

We need not tarry. Few principles are better settled in

this circuit than that "issues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are

deemed waived." United States v. Zannino,

(1st

Cir. 1990). So it is here.4

4 At any rate, we think it plain that the district court did not err by discussing the procedural details of this conviction — as delineated in the unchallenged PSI Report — in the course of evaluating the appellant's history and characteristics and the circumstances precipitating the offense of conviction. See

(a)(1); see also Ocasio-Cancel,

(explaining that undisputed facts in the PSI Report can be "treat[ed] . . . as true for sentencing purposes").

- 13 - B. Substantive Reasonableness.

This leaves the appellant's contention that his 36-month

sentence is substantively unreasonable. Specifically, the

appellant asserts that the district court lacked a plausible

rationale for imposing an upward variance because its reasoning

was based, at least in part, on the appellant's dismissed illegal

appropriation charge and his conviction for possession of a

controlled substance in the third degree.

Where, as here, a claim of substantive unreasonableness

is preserved, appellate review is for abuse of discretion. See

Matos-de-Jesús,

. We undertake this inquiry mindful

that "reasonableness is a protean concept" in the sentencing

context. United States v. Clogston,

(1st Cir.

2011) (quoting United States v. Martin,

(1st Cir.

2008)). Even so, the inquiry is not standardless: the hallmarks

of a substantively reasonable sentence are a "plausible sentencing

rationale" and a "defensible result." Martin,

.

These are broad parameters, and in any given case there is no

single reasonable sentence "but, rather, a universe of reasonable

sentencing outcomes." United States v. Vargas-García,

(1st Cir. 2015) (quoting Clogston,

).

So, too, we proceed on the understanding that it is not

our task simply to second-guess a sentencing court's considered

decisions about matters squarely within its discretion. See

- 14 - Clogston,

. Even when we are reviewing a

significant upward variance, we must afford "due deference to the

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

justify the extent of the variance." Vargas-García,

(quoting Martin,

).

As we have explained, there was nothing improper about

the manner in which the district court considered the illegal

appropriation charge. Nor was there anything improper about its

consideration of the controlled substance conviction. Although

the court did refer to the conduct underlying the latter conviction

— that the appellant had been "found in possession of one

kilo[gram] of cocaine" — this reference was based squarely on the

appellant's admission to ATF agents that he was "on parole for

possession of [one] kilogram of cocaine." And to cinch the matter,

the appellant never challenged the PSI Report's description of the

conduct underlying this conviction.

We add that the two charges spotlighted by the appellant

were far from the only factors that informed the district court's

sentencing determination. In explaining its upward variance, the

court made pellucid that it was taking into account all of the

section 3553(a) factors. Such a statement, in itself, is "entitled

to significant weight." Rodríguez-Reyes,

(quoting

United States v. Calderón-Lozano,

(1st Cir.

2019)). Relatedly, the court discussed the appellant's persistent

- 15 - disrespect for the law, his flagrant violation of the conditions

of his parole, and the alarming rate of gun-related deaths in

Puerto Rico. These observations plainly reflect the section

3553(a) factors, including the need to protect the community, to

deter others from similar criminal conduct, and to promote respect

for the law. See

(a)(2); United States v. Flores-

Machicote,

(1st Cir. 2013) (explaining that a

sentencing court "may consider community-based and geographic

factors").

Furthermore, the appellant's repeated return to criminal

behavior despite earlier encounters with the criminal justice

system reflected an abject failure to renounce criminality and

amply justified an upwardly variant sentence. The district court

was entitled to give weight to the appellant's pattern of unalloyed

criminal behavior "when determining the stringency of the

sentence" to be imposed under the section 3553(a) factors.

Gallardo-Ortiz,

. Taken together, these

justifications constitute a plausible sentencing rationale — a

rationale tailored to the facts and circumstances of the case at

hand.

We likewise conclude that the district court reached a

defensible result. After undertaking a thorough analysis of the

section 3553(a) factors, the court deemed an upward variance

appropriate and imposed a 36-month sentence. Although the extent

- 16 - of the variance (15 months) was substantial, "even a substantial variance

does not translate, ipso facto, into a finding that the sentence is

substantively unreasonable." Flores-Machicote,

. Sentencing

is "more an art than a science," and the weighing of relevant factors is a

task best left, within wide limits, to the district court's informed

discretion. Clogston,

. Those limits were not exceeded here:

the appellant, a convicted felon, was found in possession of a dangerous

weapon, just days after arriving in Puerto Rico and in direct violation of

the conditions of his parole. To make a bad situation worse, this offense

was the latest occurrence in a pattern of criminality spanning a number of

years — a pattern that emerged despite the fact that the appellant had been

afforded several opportunities to reform his behavior and respect the law.

Under these circumstances, we cannot say that a 36-month sentence, though

upwardly variant, falls outside the wide universe of substantively reasonable

sentences.

That ends this aspect of the matter. Because the district court

articulated a plausible sentencing rationale and achieved a defensible

result, we hold that the challenged sentence was substantively reasonable.

III. CONCLUSION

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

appellant's sentence is

Affirmed.

- 17 -