United States Court of Appeals For the First Circuit

No. 18-1265

UNITED STATES OF AMERICA,

Appellee,

v.

JOHN MICHAEL GARCÍA-MOJICA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Gustavo A. Gelpí, Chief, U.S. District Judge]

Before

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

Joseph A. Niskar, Assistant Federal Public Defender, with whom Franco L. Pérez-Redondo, Research & Writing Specialist, Eric Alexander Vos, Federal Public Defender, and Vivianne M. Marrero- Torres, Assistant Federal Public Defender, Supervisor, Appeals Section, were on brief, for appellant. Antonio L. Pérez-Alonso, Assistant United States Attorney, Appellate Division, with whom Thomas F. Klumper, Assistant United States Attorney, Senior Appellate Counsel, W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

April 9, 2020 TORRUELLA, Circuit Judge. In this appeal, John Michael

García-Mojica ("García") challenges a 100-month sentence of

imprisonment imposed for the convictions of possession of a firearm

by a prohibited person and illegal possession of a machine gun.

During a traffic stop, García was caught with a Glock pistol

modified to shoot automatically with its serial number removed,

two high-capacity magazines, and forty-seven rounds of ammunition.

He confessed immediately and entered a straight plea of guilty.

A probation officer recommended a sentence of forty-one to

fifty-one months for both offenses based on the U.S. Sentencing

Guidelines. At sentencing, the prosecutor challenged the probation

officer's Guidelines calculation and requested a sentence of at

least sixty-three months' imprisonment; in the alternative, the

Government requested an upward variance, arguing that the

Guidelines did not contemplate the severity of García's former

state-court convictions for which he received a twenty-three year

suspended sentence. Defense counsel countered the prosecution's

arguments and objected to the characterization of the underlying

state-court convictions. After stating it was giving García the

benefit of the doubt and disclaiming reliance on the events beyond

what was contained in the state-law convictions, the district court

adopted the Guidelines calculation and then imposed an upward

variance of forty-nine months' imprisonment. This appeal followed.

-2- Challenging his punitive sentence, García claims that the district

court erred by failing to adequately justify its sentence, relying

on unsubstantiated facts, and ultimately, arriving at a

substantively unreasonable result. His overtures unavailing, the

sentence is affirmed.

A.

On December 13, 2016, at 1:25 a.m., the police in Sábana

Grande, Puerto Rico were alerted to a suspicious vehicle with a

flat tire.1 The officers saw the vehicle with its hazard lights

on and stopped parallel to it to ask if the occupants needed

assistance. The driver stated he did not have a spare tire, and

the officer, smelling marijuana, told the driver to pull over.

Following the traffic stop, García, who was sitting in the

backseat, exited the car, meanwhile dropping a thirty-round pistol

magazine. The police arrested García and found a second magazine

in his pocket. Additionally, the police recovered from García's

waistband a model seventeen 9mm Glock pistol (loaded with a single

round in the chamber) with an obliterated serial number. Later

that day, García met with agents from the Bureau of Alcohol,

1 The facts are derived from the change-of-plea colloquy, the undisputed sections of the presentence investigation report, and the sentencing hearing transcript. See United States v. Vázquez-Martínez,

(1st Cir. 2016) (citing United States v. Zapata–Vázquez,

(1st Cir. 2015)).

-3- Tobacco, Firearms and Explosives, confirmed the police officer's

account, and admitted that the seized firearm belonged to him, and

that he had purchased the gun for $1,100 with the serial number

removed and modified to shoot automatically.

On December 21, 2016, García was charged in a two-count

indictment for violation of

(g)(1) (prohibited

person in possession of a firearm) and

(o) (illegal

possession of a machine gun). Following discovery, the United

States indicated that no plea offer would be tendered. García

proceeded to enter a straight plea of guilty for both counts. A

U.S. Probation Officer issued a presentence investigation report

(PSR), which recommended an imprisonment term of forty-one to

fifty-one months, based on a calculation of a total offense level

of twenty-one and a criminal history category of II. The PSR

recounted García's criminal history in Puerto Rico state court:

four convictions for possession of a firearm without a license, a

conviction for resisting public authority, and a conviction for

conspiracy in violation of Puerto Rico Penal Code Article 249 of

2004.2 The PSR described the last offense as "conspir[ing] to

2 Article 249 reads: "[w]hen two (2) or more persons conspire or agree to commit a crime and have made specific plans regarding their participation, the time, the location, or the acts to be carried out, they shall be guilty of a misdemeanor. . . . If the agreement is to commit a first- or second-degree felony, they shall be guilty of a fourth-degree felony . . . ." P.R. Laws Ann.

-4- commit murder, in the Food Court of San Patricio Plaza, at

5:00 p.m. using a firearm described as a black Glock, model 23,

.40 caliber, ma[king] several shots causing the death of the human

being Emmanuel J. Zapata-Casso." The PSR did not identify any

factors warranting a departure from the advisory guidelines or a

variance pursuant to

(a). Subsequently, both

prosecution and defense submitted sentencing memoranda, and

following delays from Hurricane María, the court sentenced García

on March 12, 2018.

At the sentencing hearing, the United States objected to

the PSR's Guidelines calculation, proposing a total offense level

of twenty-three because García's prior conviction constituted a

crime of violence and requesting a sentence of at least sixty-three

months. Defense counsel did not object to the PSR when prompted

by the court, but in response to the United States' objections to

the Guidelines calculations, she requested a sentence within the

PSR's proposed range. The United States then entreated the court

to impose a variance, recounting the circumstances of García's

state-court convictions3 and explaining several additional reasons

tit. 33, § 4877. 3 The prosecutor stated that in García's conspiracy-to- commit-murder case, García and another had shot several times at an individual in broad daylight at around 5:00 p.m. in the food court of San Patricio Plaza and killed that individual.

-5- why the court should vary upwardly from the Guidelines. García's

counsel objected to the Government's characterization of her

client's conviction and posited that the Guidelines sentence

accurately reflected García's criminal history. Asked why García

was not "a candidate for an upward variance" considering "all these

firearm violations," García's counsel explained that this was only

"his second brush with the law" and asked the court to consider

that the lenient sentence in state court could have been due to

additional mitigating circumstances and lack of participation.

She further explained that the current offense occurred during a

routine traffic stop, and that García would be "exposed to the

full 23 years of imprisonment [in state court] because of the

present case."

After adopting the Guidelines sentencing range set forth

in the PSR, the court explicitly stated it would "not go beyond"

what was in the state-court convictions. The court then announced

a 100-month term of imprisonment as "sufficient but not greater

than necessary." The court focused its explanation on the

seriousness of the firearms offenses, the leniency of a

twenty-three year suspended sentence, and the fact that García was

under state supervision when the instant offense was committed.

It cited United States v. Flores-Machicote,

(1st Cir.

2013), as evidence of the problem firearms pose in the District of

-6- Puerto Rico. After the pronouncement of the sentence, defense

counsel lodged an objection to the sentence's procedural

reasonableness.

This timely appeal followed.

B.

García challenges his sentence as both procedurally and

substantively unreasonable. In reviewing his claims, we first

determine whether the district court committed a "procedural

error, such as 'failing to calculate (or improperly calculating)

the Guidelines range, treating the Guidelines as mandatory,

failing to consider the section 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.'" United States v.

Gierbolini-Rivera,

, 11–12 (1st Cir. 2018) (quoting

United States v. Trinidad-Acosta,

(1st Cir.

2014)).4 "[I]f the sentence is procedurally sound, we then ask

whether the sentence is substantively reasonable." Id. at 12

(alteration in original) (quoting United States v. Rossignol, 780

4 The court is required to "impose a sentence [that is] sufficient, but not greater than necessary" to accomplish the goals of sentencing by taking into consideration the § 3553(a) factors after correctly calculating the Guidelines sentence range. See United States v. Rodríguez,

(1st Cir. 2013).

-7- F.3d 475, 477 (1st Cir. 2015)). A sentence will be found

"substantively reasonable so long as the sentencing court has

provided a 'plausible sentencing rationale' and reached a

'defensible result.'"

(quoting United States v. Martin,

(1st Cir. 2008)).

García attacks the procedural reasonableness of his

sentence for two reasons: the district court "fail[ed] to

[adequately] justify the extent of the variance" and "premised the

extent of the variance on unsupported allegations." The

Government avers that García's objection to the sentence's

procedural reasonableness was too general to secure review of the

sentence under the abuse of discretion standard that García seeks

on appeal. See

("We generally apply the deferential abuse of

discretion standard to preserved challenges to the procedural

reasonableness of a sentence." (citing United States v. Del

Valle-Rodríguez,

(1st Cir. 2014))). It is true

that "[a] general objection to the procedural reasonableness of a

sentence is not sufficient to preserve a specific challenge to any

of the sentencing court's particularized findings," and claims

first raised on appeal will be subject to the more formidable plain

error standard of review.5 United States v. Matos-de-Jesús, 856

5 "Under that formidable 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

-8- F.3d 174, 177–78 (1st Cir. 2017) (quoting United States v.

Soto-Soto,

, 448 n.1 (1st Cir. 2017)). García responds

that the current arguments were "at the forefront of the sentencing

hearing and the primary point of contention between the parties."

However, even assuming the more favorable standard of review,

García's contentions would still fail. See United States v.

Caballero-Vázquez,

(1st Cir. 2018).

García first argues that the district court failed to

adequately articulate a basis for departing so significantly from

the Guidelines range of forty-one to fifty-one months'

imprisonment to impose a 100-month sentence. Given such a drastic

variance, he contends, the court was obligated to offer an

explanation commensurate to the extent of additional time. García

puzzles over how the court could eschew reliance on the

Government's representations of the 2011 Puerto Rico court

convictions by giving García "every conceivable benefit of the

doubt" and yet still impose such a punitive sentence. García

insists that because the Guidelines accounted for the aggravated

nature of the weapon during the pendency of a suspended sentence,

(4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings.'" United States v. Matos-de-Jesús,

(1st Cir. 2017) (alteration in original) (quoting United States v. Duarte,

(1st Cir. 2001)).

-9- in addition to his criminal history, the court's departure from

the Guidelines required it to "articulate specifically the reasons

that this particular defendant's situation is different from the

ordinary situation covered by the [G]uidelines calculation."

United States v. Vázquez-Martínez,

(1st Cir. 2016)

(quoting United States v. Zapete–García,

(1st Cir.

2006)).

While we agree with García that a "sentencing court's

burden to explain its sentence increases the more that it deviates

from the guideline range," Matos-de-Jesús,

, the

court here did just that. Reviewing the sentencing transcript,

the court's explanation of its reasoning is thorough. While the

court was certainly troubled by the circumstances already factored

into the Guidelines calculation, it expressed additional concerns,

including that García had not learned from his lenient state-court

sentence for his prior weapons offenses6 and had committed the

instant offense only five years into his twenty-three year

suspended sentence. The court also noted that García was carrying

6 García contests whether the twenty-three year suspended state sentence was actually lenient. While defense counsel was free to argue that García's twenty-three year suspended sentence was the result of mitigating factors related to his level of participation in the underlying offense, the court was within its discretion to find those arguments unpersuasive and to determine that García's recent convictions evidenced that he had not learned from his "Herculean break" in state court.

-10- extra ammunition, which contributed to the lethalness of the

automatic weapon.7 Additionally, the court cited the problem of

illegal weapons in Puerto Rico as pertinent to the seriousness of

the present offense, nodding to Flores-Machicote,

. See also United States v. Santos–Rivera,

(1st Cir. 2016) ("[T]he incidence of particular crimes in the

relevant community appropriately informs and contextualizes the

need for deterrence." (alteration in original) (quoting United

States v. Narváez-Soto,

(1st Cir. 2014))). The

sentencing court's articulation of these concerns regarding

García's prior lenient treatment and pattern of serious weapons

offenses in his particular community can be considered as falling

outside the factors explicitly considered by the Guidelines,

warranting additional deterrence and resulting in additional time.

García's second argument -- that the district court's

variance can only be explained by its reliance on unsupported

allegations -- is intertwined with his first. According to García,

because the court failed to explain why he was distinguishable

from other similarly situated defendants and did not articulate a

compelling reason for almost doubling the recommended sentence,

the court must have relied on the prosecution's characterization

7 The Guidelines do not take into consideration the extra ammunition García was carrying when apprehended.

-11- of his underlying state law conviction. García contends that

consideration of these facts not in evidence essentially

prejudiced the district court against him, overriding any

mitigating factors offered by the defense.

This argument, however, fails simply due to the fact

that the state-court convictions were properly before the court.

The PSR (to which García did not object) stated that García was

convicted for conspiring to commit murder leading to a death, and

his own sentencing memorandum read that García had "conspired in

the murder of a third person." While the prosecution implored the

sentencing court to read more into the "asymmetry between

Mr. García's [state court] punishment and his alleged conduct," it

was within the court's discretion to take the convictions described

in the PSR at face value when determining the appropriate sentence

in light of the § 3553(a) factors. United States v. Acevedo-

López,

(1st Cir. 2017) ("[Defendant] did not

object to the summaries of these two incidents in the PSR, so the

district court could treat those facts 'as true for sentencing

purposes.'" (quoting United States v. Ocasio-Cancel,

(1st Cir. 2013))). Additionally, the sentencing judge

expressly disavowed any reliance on facts beyond the convictions

when it thoroughly articulated the aforementioned reasons for the

variance. Because the court sufficiently explained the sentence

-12- while relying on the facts properly before it, García's claims of

procedural error fail.

Lastly, García incorporates his prior arguments of

procedural error to challenge the sentence's substantive

reasonableness (i.e., length), acknowledging that only a

"plausible explanation" of the sentence is required. See United

States v. Clogston,

(1st Cir. 2011). At

sentencing, García "advocate[d] for a sentence shorter than the

one ultimately imposed." Holguin-Hernández v. United States,

(2020). Therefore, we review his objections to

the sentence's substantive reasonableness for an abuse of

discretion.

With respect to substance, "[s]entencing is much more an

art than a science. A sentencing court is under a mandate to

consider a myriad of relevant factors, but the weighting of those

factors is largely within the court's informed discretion."

Clogston,

. "Although an appellate court must take

into account the full extent of any variance, the dispositive

question remains whether the sentence is reasonable in light of

the totality of the circumstances." Vázquez-Martínez,

(quoting United States v. Santiago–Rivera,

(1st Cir. 2014)). The sentencing court here stated that it was

considering both aggravating and mitigating factors, the latter

-13- including acceptance of responsibility, physical and emotional

conditions, and substance abuse, although in the end, it chose

"not to attach to certain of the mitigating factors the

significance that the appellant th[ought] they deserved."

Clogston,

. Instead, the court found that García's

personal circumstances and the seriousness of his repeat firearm

offenses warranted an above-Guidelines sentence. That is not an

abuse of discretion.

García also laments that the district court neglected to

consider "the aggregate length of his federal and state sentence

as part of its duty to consider the § 3553(a) factors." Upon

review, it appears instead that the district court considered this

and the possibility that García could be liable for the imposition

of the entire twenty-three year state sentence and still found the

aggravating factors outweighed the mitigating factors. As the

sentence is within the "universe of reasonable sentencing

outcomes," United States v. Vargas-García,

(1st

Cir. 2015) (quoting Clogston,

), we cannot find it

substantively unreasonable.

Affirmed.

-14-