United States Court of Appeals For the First Circuit

Nos. 19-1562 19-1565

UNITED STATES OF AMERICA,

Appellee,

v.

RAFAEL ANTONIO SANTA-SOLER,

Defendant, Appellant.

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

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

Before

Thompson, Selya, and Barron, Circuit Judges.

Eric Alexander Vos, Federal Public Defender, and Franco L. Pérez-Redondo, Assistant Federal Public Defender, Supervisor, Appeals Division, on brief for appellant. W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá- Almonte, Assistant United States Attorney, Chief, Appellate Division, and Antonio L. Perez-Alonso, Assistant United States Attorney, on brief for appellee.

January 14, 2021 SELYA, Circuit Judge. These consolidated appeals are

brought by defendant-appellant Rafael Antonio Santa-Soler. The

first appeal relates to the defendant's sentence following his

conviction on a charge of being a felon in possession of a firearm.

The second appeal relates to the defendant's sentence following

the revocation of a supervised release term imposed in connection

with a prior, unrelated conviction.1 Concluding, as we do, that

the defendant's claims of error are unavailing, we affirm the

challenged sentences.

I. BACKGROUND

Where, as here, a defendant appeals sentences imposed

following guilty pleas, we draw the facts from the plea colloquy,

the unchallenged portions of the presentence investigation report

(PSI Report), and the sentencing transcript. See United States v.

Miranda-Díaz,

(1st Cir. 2019); United States v.

Dávila-González,

(1st Cir. 2010). On September 9,

2018, police officers in Puerto Rico received a call from a witness

who had seen the driver of a black Mercedes pointing a firearm at

an unknown individual. Upon locating the vehicle, officers

observed the defendant disembarking from it. They detained the

defendant, administered a breathalyzer test, discovered that his

blood-alcohol level was 0.163, and arrested him for driving under

1With the consent of the parties, both of the challenged sentences were imposed during the same disposition hearing.

- 2 - the influence of alcohol. Incident to the arrest, the police also

impounded the vehicle. Upon searching it the next day, they

recovered a stolen nine-millimeter caliber pistol with a round in

the chamber.

At the time of his arrest, the defendant was a federally

convicted felon, having been found guilty of two carjackings in

2008 and sentenced to prison. Cognizant of this history, a federal

grand jury sitting in the District of Puerto Rico returned an

indictment charging the defendant with unlawful possession of a

firearm and ammunition by a convicted felon. See

(g)(1). The charged conduct was committed while the defendant

was serving a term of supervised release traceable to his

carjacking convictions and the subsequent revocation of supervised

release terms imposed in connection with his sentence for those

convictions.2 The defendant pleaded guilty to the felon-in-

possession charge and stipulated that he had violated the

conditions of the ongoing supervised release term.

The probation department prepared the PSI Report, which

calculated the defendant's guideline sentencing range (GSR) at 46

to 57 months based on a total offense level of 19 and a criminal

2While serving the supervised release term attached to his carjacking sentence, the defendant was twice arrested for other crimes: drug-trafficking and domestic violence, respectively. Each of these crimes resulted in the revocation of an ongoing term of supervised release and — eventually — in the imposition of a new term of supervised release.

- 3 - history category of IV. The defendant did not challenge these

calculations. He did, however, file a sentencing memorandum

requesting a sentence at the bottom of the GSR with respect to the

felon-in-possession charge. He also requested that any sentence

resulting from the revocation of supervised release run

concurrently with the sentence imposed on the felon-in-possession

charge.

On May 15, 2019, the district court convened a joint

disposition hearing for both the felon-in-possession charge and

the supervised release revocation. See supra note 1. With respect

to the former, the court reviewed the defendant's criminal history.

In the course of this review, it mentioned certain of the

defendant's prior arrests but made clear that those arrests had

not ripened into convictions. After indicating that it had

reviewed the sentencing factors limned in

(a), the

court imposed an upwardly variant prison sentence: 66 months.

The court decreed that this term of immurement should be served

consecutive to any term of immurement imposed as a result of the

revocation of the defendant's supervised release.

With respect to the supervised release violation, the

court noted that the offense triggering the revocation of

supervised release was a Class C felony and, thus, allowed the

imposition of an incarcerative sentence up to a maximum of 24

months. See

. Explaining, inter alia, that the

- 4 - defendant's supervised release had been revoked twice before, the

court proceeded to pronounce a 24-month sentence.

The defendant separately appealed each of these

sentences. Those appeals are presently before us.

II. ANALYSIS

The defendant advances discrete claims of error with

respect to each of the imposed sentences. We treat these claims

separately, starting with the felon-in-possession sentence.

A.

The defendant assigns error to the felon-in-possession

sentence on two grounds. First, he argues that the district court

improvidently relied on his arrest record (which includes arrests

that did not result in convictions). Second, he argues that the

court failed to provide an adequate explanation for the sentence

imposed.

As a general matter, we review sentencing challenges for

abuse of discretion. See Gall v. United States,

(2007); United States v. Clogston,

(1st Cir.

2011). That standard of review applies to the defendant's arrest-

record claim, which was raised below.

Even so, the defendant's claim that the district court

impermissibly relied on his prior arrests does not hold water. To

support this claim, the defendant points to a series of cases

holding that a sentencing court cannot rely on an unembellished

- 5 - arrest (that is, an arrest not leading to a conviction) as an

adverse sentencing factor. See, e.g., United States v. Marrero-

Pérez,

(1st Cir. 2019); United States v.

Gallardo-Ortiz,

(1st Cir. 2012); United States

v. Zapete-García,

(1st Cir. 2006). Although

those cases are good law, they are inapposite here.

The short of it is that the defendant's argument sweeps

too broadly. Although a sentencing court may be prohibited from

relying on a defendant's arrest record simpliciter as an adverse

sentencing factor and from drawing inferences of guilt from such

an unembellished arrest record, see Marrero-Pérez,

,

sentencing courts are not prohibited from simply recounting a

defendant's arrest history. It follows that a sentencing court's

mere mention of a defendant's arrest record as a matter of

historical fact, without more, does not constitute an abuse of

discretion. See United States v. Díaz-Lugo,

(1st Cir. 2020) ("[A] sentencing court does not abuse its

discretion merely by reciting a defendant's arrest record.").

In this case, there was no "more." The record shows

with conspicuous clarity that the sentencing court did not "rel[y]

on an arrest report" in fashioning the challenged sentence.

Miranda-Diaz,

-40 (quoting Marrero-Pérez,

). The converse is true: the court stated in no uncertain

- 6 - terms that the defendant's prior arrests, not leading to

convictions, were "not considered for the sentence."

Despite this disclaimer, the defendant clings to

Marrero-Pérez,

, to support the proposition that

district courts may not reference defendants' arrest histories at

sentencing. But the defendant's reliance on Marrero-Pérez is

misplaced. There, the sentencing court expressly based the need

for a higher sentence on the defendant's arrest history. See

Here, by contrast, the district court drew no such inference, going

so far as to state explicitly that the defendant's arrest history

had no impact on his sentence. There was no abuse of discretion.

The defendant's next claim of error posits that the

sentencing court did not provide a sufficient explanation for

imposing an upward variance. Because this challenge is raised for

the first time on appeal, our review is for plain error. See

United States v. Duarte,

(1st Cir. 2001). As we

have repeatedly said, "[t]he plain error hurdle is high." United

States v. Hunnewell,

(1st Cir. 1989). To

demonstrate plain error, an appellant must show "(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." Duarte,

. The proponent

- 7 - of plain error must make all four showings in order to prevail.

See United States v. Pinkham,

(1st Cir. 2018).

In this instance, we discern no error, plain or

otherwise. The court below furnished adequate reasons for the

sentence imposed: it cited, among other things, the defendant's

checkered criminal history (that is, his record of convictions),

his prior interactions with illicit drugs, his repeated disregard

for supervised release conditions (leading to a total of ten

supervised release violations and three revocations), his lack of

any meaningful record of employment, and the egregious nature of

his offense conduct.3 The court's explanation was adequate,

bearing in mind that "[e]ven 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.'" Miranda-Diaz,

(quoting United States v. Vargas-García,

(1st

Cir. 2015)).

That ends this aspect of the matter. We hold, without

serious question, that the sentence imposed on the felon-in-

possession conviction survives the defendant's challenge.

3 The offense of conviction involved possession of a stolen firearm, loaded and ready to fire. Moreover, there was evidence that the defendant had pointed the gun at an individual while he (the defendant) was heavily inebriated.

- 8 - B.

This brings us to the defendant's appeal of the sentence

imposed in connection with the revocation of his supervised release

term. The defendant contends that the sentence is substantively

unreasonable, attributing this alleged shortcoming in large part

to the court's failure to consider and/or give appropriate weight

to mitigating factors as required by

(a).4 This

claim of error engenders abuse-of-discretion review. See Holguin-

Hernandez v. United States,

(2020).

We assess challenges to the substantive reasonableness

of a sentence by asking whether the challenged sentence "is

supported by a plausible sentencing rationale and reaches a

defensible result." United States v. Cameron,

(1st Cir. 2016) (quoting United States v. Breton,

(1st Cir. 2014)). Here, the defendant's primary argument is that

this standard is not satisfied because the sentencing court failed

properly to weigh certain section 3553(a) factors (specifically,

the defendant's mental health history and personal

characteristics).

To begin, the defendant submits that the district court

totally disregarded the mitigating factors. He stresses that the

4 As a technical matter, the defendant predicates this failure on noncompliance with

(e). That statute, though, simply directs a sentencing court to

.

- 9 - court made no explicit mention of the mitigating factors with

respect to the revocation sentence but, rather, only mentioned

those factors with respect to the felon-in-possession sentence.

This discussion, the defendant notes, did not take place until

after the court handed down the revocation sentence.

The defendant's argument artificially compartmentalizes

what transpired at the disposition hearing. A sentencing court's

comments must be read as a whole. See Dávila-González,

. Here, the sentencing transcript, read as a whole, makes

manifest that the court discussed a multitude of factors specific

to the defendant's overall situation. Although the court did not

walk through the section 3553(a) factors one by one before imposing

a sentence for the supervised release revocation, it did

demonstrate its awareness of those factors during the hearing.

This discussion obviously informed both of the sentences imposed

and sufficed to show the court's familiarity with the section

3553(a) factors insofar as those factors related to both of the

sentencing determinations. See

(finding that district

court properly weighed section 3553(a) factors even though no one

factor was specifically mentioned at sentencing).

In addition, we find that the district court clearly

articulated its sentencing rationale. The court explicitly noted

that the defendant had twice before had his supervised release

revoked. It went on to explain that a maximal sentence was

- 10 - justified because "[the defendant] has shown that he is unable to

comply with the law or the conditions of supervision imposed by

this Court." The court further explained that it had considered

the policy statements of the sentencing guidelines as required by

statute. See

(a), 3583(e).

The court's rationale was plausible: the defendant

repeatedly demonstrated an inability to comply with the terms of

supervised release. What is more, the crimes that the defendant

committed while on supervised release — such as domestic violence,

drug-trafficking, and possessing a stolen firearm following

previous felony convictions — pose significant risks to the public.

Against this backdrop, it was reasonable for the court to conclude

— as it did — that the need for condign punishment, adequate

deterrence, and respect for the rule of law warranted a maximum

sentence. See Díaz-Lugo,

; Vargas-Garcia,

.

The defendant's attack on the plausibility of this

rationale misses the mark. "Merely raising potentially mitigating

factors does not guarantee" a particular result. Dávila-González,

. So, too, it is incorrect to assume — as the

defendant does — that his failure to persuade the court to impose

a more lenient sentence implies that the mitigating factors he

cites were overlooked. See United States v. Martins,

(1st Cir. 2005). On this record, the more appropriate

- 11 - inference is that, in the court's view, the mitigating factors

that the defendant highlighted were unpersuasive. See id.; see

also United States v. Butler-Acevedo,

(1st

Cir. 2011) (concluding that district court had considered

mitigating factors not referenced in court's stated sentencing

rationale). Here, moreover, the court acknowledged that it had

reviewed the defendant's sentencing memorandum — a memorandum that

discussed the defendant's mental health history and the other

supposedly mitigating factors.

Last — but far from least — the sentence itself is

defensible. After all, "[t]here is no one reasonable sentence in

any given case but, rather, a universe of reasonable sentencing

outcomes." Clogston,

. In the case at hand, the

court imposed the maximum available sentence — twenty-four months

— after considering, inter alia, previous violations of supervised

release and the severity of the offense that triggered the latest

revocation. Taking into account the totality of the circumstances,

we are satisfied that the sentence falls within the broad universe

of reasonable outcomes. See

(holding that weighing

pertinent factors to determine sentence "is largely within the

court's informed discretion"). That is game, set, and match. We

conclude both that a twenty-four month sentence on the revocation

charge is substantively reasonable and that the court below acted

- 12 - within the encincture of its discretion in imposing such a

sentence.5

III. CONCLUSION

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

the challenged sentences are

Affirmed.

5 The defendant does not argue that his combined sentences are substantively unreasonable because the district court ordered them to run consecutively rather than concurrently. Given the wide latitude enjoyed by the district courts in determining whether sentences should run consecutively or concurrently, see

; see also United States v. Ocasio-Cancel,

(1st Cir. 2013) ("[T]he decision about whether to impose a concurrent or consecutive sentence normally lies within the district court's discretion."), any such argument would have faced a steep uphill climb.

- 13 -