United States Court of Appeals For the First Circuit

Nos. 18-2029 18-2030 UNITED STATES OF AMERICA,

Appellee,

v.

RAFAEL J. FLORES-QUIÑONES, a/k/a Popeye,

Defendant, Appellant.

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

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

Before

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

Tanaira Padilla-Rodríguez on brief for appellant. Gregory B. Conner, Assistant United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and W. Stephen Muldrow, United States Attorney, on brief for appellee.

January 15, 2021 LYNCH, Circuit Judge. In 2018, police saw Rafael J.

Flores-Quiñones ("Flores"), who was on supervised release for a

drug-trafficking conviction, shooting an assault rifle from his

car window outside a restaurant/pub ("pub") in Canóvanas, Puerto

Rico. After Flores fled from the police, the officers found a

loaded assault rifle on the seat of his car which was a basis for

charges of both a revocation of his supervised release and a new

crime. He pleaded guilty to being a felon in possession of a

firearm and was sentenced to sixty months' imprisonment for that

new offense and to eighteen months' imprisonment for the revocation

of supervised release. He now argues that those sentences were

procedurally and substantively unreasonable. Finding no error,

we affirm.

I.

In 2010, Flores was convicted of conspiracy to possess

with intent to distribute at least 500 grams, but less than two

kilograms, of cocaine within 1,000 feet of a protected location.

He sold drugs and acted as a lookout for a drug-trafficking

organization at a public housing project in Carolina, Puerto Rico.

He was sentenced to sixty months' imprisonment and eight years of

supervised release.

After Flores was released from incarceration in January

2016, he began serving his supervised release in Pennsylvania,

where his daughters and their mother lived. While there, he failed

- 2 - to appear for urine tests on several occasions and admitted to

marijuana use. After returning to Puerto Rico, he tested positive

for benzodiazepines and admitted to synthetic marijuana use. He

was caught with synthetic marijuana at an in-patient substance

abuse program, causing his expulsion from that program. The

district court revoked Flores's supervised release and sentenced

him in June 2017 to nine months' imprisonment.

Flores was released in January 2018. On March 29, 2018,

the Puerto Rico Police Department received a tip from a

confidential source that Flores had been seen firing a rifle

outside a pub located on a highway in Canóvanas, Puerto Rico, which

is about a thirty-minute drive from San Juan. In the early morning

of April 1, 2018, officers saw Flores leave the pub, get in a car,

take out a rifle, and fire it out of the window into the air.

After following Flores to a local market in nearby Río Grande, the

officers confronted Flores and he fled on foot. The officers

observed an AR-15 rifle, which was loaded with twenty-five rounds

of .223-caliber ammunition, in plain view on the front passenger

seat of Flores's car. The officers arrested Flores at his home

later that day. He admitted that the assault rifle was his and

that he had fired it that morning outside the pub.

A federal grand jury indicted Flores on one count of

being a felon in possession of a firearm in violation of

(g)(1). The government also commenced revocation proceedings

- 3 - against him. Flores pleaded guilty to the felon-in-possession

charge pursuant to a plea agreement. He agreed to a total offense

level of nineteen as to that offense. The plea agreement did not

include a stipulated criminal history category. It provided that

the government would seek a sentence at the higher end of the

United States Sentencing Guidelines ("U.S.S.G." or "Guidelines")

range for the felon-in-possession offense, while Flores could seek

a sentence at the lower end for that offense.

The presentence report ("PSR") calculated a Guidelines

sentencing range of thirty-seven to forty-six months for the felon-

in-possession offense based on a total offense level of nineteen

and a criminal history category of III. The PSR identified no

factors warranting a departure for that offense. The U.S.

Probation Office separately calculated a Guidelines sentencing

range of four to ten months for the revocation of supervised

release based on the felon-in-possession offense.

On September 25, 2018, the district court held a hearing

to sentence Flores on the felon-in-possession offense and to

address the revocation of his supervised release.

As to the felon-in-possession offense, Flores requested

a sentence at the low end of the calculated Guidelines sentencing

range, arguing that his difficult family history led to his

criminal behavior and that he was still young and had a GED and

work experience as a cook. He requested a sentence at the high

- 4 - end for the revocation of supervised release and a total sentence

for both of forty-seven months. The government requested forty-

six months for the felon-in-possession offense, the high end of

the Guidelines range. It argued that the offense was particularly

serious because Flores committed it within a few months of his

release from prison and while on supervised release, he fired an

assault rifle which is particularly dangerous, and his most recent

prison term was already for revocation of supervised release. The

government also requested a higher-end sentence for the

revocation, arguing that Flores's crimes had escalated from drugs

to firearm possession. The government sought a total sentence of

fifty-six months between the felon-in-possession offense and the

revocation of supervised release.

Addressing first the felon-in-possession offense, the

district court agreed with the Guidelines calculation set forth in

the PSR, finding a Guidelines range of thirty-seven to forty-six

months for that offense. It then considered the sentencing

factors set forth in

(a). It noted that Flores

was twenty-eight years old and had a GED and a history of

employment before his arrest. It also noted his history of using

marijuana and Percocet.

The district court recounted that Flores had "fired out

of his car window outside a restaurant only three months after his

supervised release term had commenced, which put the lives of other

- 5 - persons in danger." It noted that "Flores possessed a semi-

automatic firearm capable of accepting a large capacity magazine,"

namely "an AR-15 type assault rifle . . . loaded [with] a high

capacity magazine with 25 rounds of .223 ammunition."

Citing the sentencing factors under

(a),

the district court found that "[b]ecause the weapon Mr. Flores

possessed was an assault rifle, and because he fired it outside

his car window putting the lives of other persons in danger,"

neither the sentence Flores sought nor the sentence the government

sought for the felon-in-possession offense "reflect[ed] the

seriousness of the offense, promote[d] respect for the law,

protect[ed] the public from further crimes by Mr. Flores, or

addresse[d] the issues of deterrence and punishment." The court

imposed a sentence of sixty months' imprisonment on the felon-in-

possession offense to be served consecutively to the sentence to

be imposed for the revocation. Flores objected to the felon-in-

possession sentence as procedurally and substantively unreasonable

but did not specify the grounds for objection.

Turning to the revocation, the district court found that

Flores had violated the conditions of his supervised release by

committing a new crime and revoked his supervised release. It

agreed with the Probation Office's calculated Guidelines range of

four to ten months' imprisonment for the supervised release

violation.

- 6 - The district court considered the sentencing factors for

Flores's revocation sentence. The court explained that Flores had

previously violated the terms of his supervised release by

possessing and abusing drugs and by failing to participate in drug

treatment programs, and it concluded that his history of violations

demonstrated his inability to comply with the law and the

conditions of his release. It also reiterated that Flores fired

an assault rifle out of his car "in complete disregard to the

safety of innocent bystanders and residents of the area." Again

citing the § 3553(a) sentencing factors, the court concluded that

a sentence above the Guidelines range for the revocation was

warranted "[t]o reflect the seriousness of the offense, [to]

promote respect for the law, [to] provide just punishment for the

offense, [to] afford adequate deterrence, and to protect the public

from further crimes by" Flores. The district court imposed a

sentence of eighteen months for Flores's revocation to be served

consecutively to the sentence for the felon-in-possession offense.

Flores again objected to the sentence as procedurally and

substantively unreasonable but again did not specify the grounds

for objection.

Flores timely appealed.

II.

Flores challenges both the procedural and substantive

reasonableness of his above-Guidelines-range sentences. Although

- 7 - the appeal is from two different sentences, the felon-in-

possession sentence and the revocation sentence, Flores does not

distinguish between the two but rather presents one set of

arguments as to both. We thus treat the arguments as to those

sentences together. "Where challenges are to the procedural and

substantive reasonableness of a sentence, '[o]ur review process is

bifurcated: we first determine whether the sentence imposed is

procedurally reasonable and then determine whether it is

substantively reasonable.'" United States v. Reyes-Torres,

(1st Cir. 2020) (alteration in original) (internal

quotation marks omitted) (quoting United States v. Sayer,

(1st Cir. 2019)). "In the sentencing context, we evaluate

claims of unreasonableness in light of the totality of the

circumstances." United States v. Flores-Machicote,

(1st Cir. 2013) (citing Gall v. United States,

(2007)).

"In assessing the procedural reasonableness of a

sentence, we apply a 'multifaceted' abuse of discretion standard

in which 'we apply clear error review to factual findings, de novo

review to interpretations and applications of the guidelines, and

abuse of discretion review to judgment calls.'" Reyes-Torres,

(quoting United States v. Nieves-Mercado,

(1st Cir. 2017)). "We review a preserved challenge to the

substantive reasonableness of a sentence under an abuse of

- 8 - discretion standard." Id. at 9. "A sentence is substantively

reasonable so long as the sentencing court has provided a

'plausible sentencing rationale' and reached a 'defensible

result.'" Sayer,

(quoting United States v. Martin,

(1st Cir. 2008)).

Flores first argues that the district court

impermissibly departed upwardly from the Guidelines sentencing

ranges without complying with the notice requirements of Fed. R.

Crim. P. 32(h),1 which purportedly rendered the resulting sentences

procedurally infirm. He argues that U.S.S.G. § 5K2.6 explicitly

provides for a substantial departure from the Guidelines

sentencing range where a dangerous weapon is possessed and fired

in the commission of an offense that endangers others, and so the

departure Guidelines expressly cover what the district court did

here.2 U.S. Sent'g Guidelines Manual § 5K2.6 (U.S. Sent'g Comm'n

1 Rule 32(h) provides that "[b]efore the court may depart from the applicable sentencing range on a ground not identified for departure either in the presentence report or in a party's prehearing submission, the court must give the parties reasonable notice that it is contemplating such a departure[ and t]he notice must specify any ground on which the court is contemplating a departure." Fed. R. Crim. P. 32(h) (emphases added). 2 The full text of U.S.S.G. § 5K2.6 provides: "If a weapon or dangerous instrumentality was used or possessed in the commission of the offense the court may increase the sentence above the authorized guideline range. The extent of the increase ordinarily should depend on the dangerousness of the weapon, the manner in which it was used, and the extent to which its use endangered others. The discharge of a firearm might warrant a

- 9 - 2018). Those arguments lack merit for the simple reason that the

district court did not depart from the applicable Guidelines

ranges, but rather imposed variant sentences.3

The district court specifically discussed the particular

dangerousness of the offense conduct, which involved Flores

shooting a semi-automatic rifle in a public area outside a pub,

and Flores's repeated disregard for the terms of his supervised

release. Those circumstances led the district court to conclude

that above-Guidelines-range sentences were necessary to afford

adequate deterrence, to reflect the seriousness of the offense, to

protect the public, and to promote respect for the law, all of

which are factors under

(a)(2). The district

court also expressly cited § 3553(a) in sentencing Flores.

Setting a sentence after referencing and analyzing the sentencing

factors under § 3553(a) shows that the court was imposing a

variance, even when it referenced grounds which would be relevant

to a departure under the Guidelines. See United States v. Santini-

Santiago,

(1st Cir. 2017); United States v.

Aponte-Vellón,

(1st Cir. 2014) (concluding that

substantial sentence increase." U.S. Sent'g Guidelines Manual § 5K2.6 (U.S. Sent'g Comm'n 2018). 3 Because we reject Flores's claims of procedural and substantive unreasonableness on the merits and find that the district court committed no error, we need not reach the government's arguments as to plain error review and waiver.

- 10 - the sentencing court engaged in a variance, even though it

"echo[ed]" grounds for a departure under the Guidelines). Because

the district court imposed variant sentences, and not departures,

the notice requirements of Rule 32(h) did not apply. Irizarry v.

United States,

(2008); Santini-Santiago,

; see also United States v. Daoust,

(1st Cir. 2018) (holding that the advance notice requirements of

Rule 32(h) do not apply to sentences imposed for supervised release

violations, which are governed by a different rule).

Nor were the sentences imposed otherwise procedurally

unreasonable. In assessing procedural reasonableness, "[w]e must

ensure that the district court did not commit any 'significant

procedural error' to arrive at a sentence." Sayer,

(quoting Gall,

). Significant procedural errors

include

failing to calculate (or improperly calculating) the [Guidelines sentencing range], 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,

(second alteration in original)

(quoting Gall,

).

Flores does not argue that the district court failed to

calculate or miscalculated the Guidelines sentencing range,

- 11 - treated the Guidelines as mandatory, or selected a sentence based

on clearly erroneous facts. And the district court expressly

referenced and analyzed the § 3553(a) factors and explained why,

based on those factors, it was imposing sentences which exceeded

the Guidelines ranges. There was no significant procedural error.4

For the same reasons, Flores's argument that the variant

sentences were substantively unreasonable lacks merit. The

district court provided plausible sentencing rationales for both

sentences based on the dangerousness of the assault rifle fired in

public and Flores's repeated and flagrant disrespect for the terms

of his supervised release, which included committing a serious

offense within only a few months of his latest release from prison.

See, e.g., United States v. Méndez-Báez,

(1st

Cir. 2019); Daoust,

. The upwardly variant

sentences were a defensible result based on those circumstances

4 The district court cited the sentencing factors under

(a) in varying upwardly on the revocation sentence, even though the relevant factors are found in a separate section,

(e). See Daoust,

. However, § 3583(e) does not enumerate any independent considerations but rather explicitly incorporates a number of the § 3553(a) factors, including the nature and circumstances of the offense, the need for adequate deterrence, and the need to protect the community from further crimes of the defendant. Id.; see also

(e). And in any event, the defendant waived any argument that the failure to cite specifically to § 3583(e) with respect to the revocation sentence was procedural error by not raising it in his brief. See Vázquez-Rivera v. Figueroa,

, 47 n.1 (1st Cir. 2014); United States v. Dávila-Félix,

, 51 n.5 (1st Cir. 2011).

- 12 - and the need to achieve adequate deterrence, to protect the

community, and to promote respect for the law. See, e.g., Méndez-

Báez,

; Daoust,

(affirming

both the procedural and substantive reasonableness of an upwardly

variant sentence for a revocation of supervised release).

Flores's variant sentences are both procedurally and

substantively reasonable.

Affirmed.

- 13 -