United States Court of Appeals For the First Circuit

Nos. 18-2107, 18-2207

UNITED STATES OF AMERICA,

Appellee,

v.

JOSHUA AYALA-LUGO,

Defendant, Appellant.

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

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

Before

Lynch and Barron, Circuit Judges.*

Marie L. Cortés-Cortés on brief for appellant. W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá- Almonte, Assistant United States Attorney, and Antonio L. Perez- Alonso, Assistant United States Attorney, on brief for appellee.

April 29, 2021

* While this case was submitted to a panel that included Judge Torruella, he did not participate in the issuance of the panel's opinion. The remaining two panelists therefore issued the opinion pursuant to

(d). LYNCH, Circuit Judge. On March 22, 2018, Joshua

Ayala-Lugo, a convicted felon on supervised release, pleaded

guilty to one count of illegally possessing a firearm in violation

of

(g)(1). The district court sentenced him to a

within-guidelines sentence of forty-six months in prison for

violating § 922(g)(1) to be served consecutively with an eighteen-

month sentence for violating the terms of his supervised release.

Ayala-Lugo, arguing that both of these sentences were

substantively and procedurally unreasonable, appeals. We affirm.

I. Facts and Procedural History

In 2008, Ayala-Lugo pleaded guilty to conspiring to

possess various controlled substances with intent to distribute

them in violation of

, 841(a)(1), (b)(1)(C),

(b)(2), and 860. On December 9, 2008, he was sentenced to ten

years' imprisonment to be followed by six years of supervised

release. He began his supervised release on July 19, 2017.

About four months after his supervised release began, on

November 15, 2017, Ayala-Lugo was arrested at a known drug point

in Cataño, Puerto Rico while possessing a firearm and seventy-five

rounds of ammunition. Two days later, on November 17, 2017,

Ayala-Lugo's probation officer notified the court that Ayala-Lugo

had violated the terms of his supervised release. On November 20,

2017, Ayala-Lugo was indicted by a grand jury for being a felon in

possession of a firearm in violation of § 922(g)(l).

- 2 - On March 22, 2018, Ayala-Lugo pleaded guilty to

violating § 922(g)(l) and the district court accepted his plea.

There was no plea agreement.

The court held a sentencing hearing on October 17, 2018.

It reviewed the probation officer's sentencing guidelines

calculations, which reflected a total offense level of nineteen

and a criminal history category of III, and stated that the officer

had correctly applied the guidelines. Based on these calculations,

the guidelines imprisonment range for Ayala-Lugo's § 922(g)(l)

violation was thirty-seven to forty-six months. Ayala-Lugo did

not object to this calculation.

At sentencing, Ayala-Lugo's counsel requested a below-

guidelines sentence of eighteen months. The government requested

a low-end guidelines sentence of thirty-seven months. In support

of his requested sentence, Ayala-Lugo's counsel presented a report

produced by Dr. Alexandra Ramos (the "Ramos Report") saying that

Ayala-Lugo has an intellectual disability. The Ramos Report was

produced shortly before sentencing and was not included in the

presentence investigation report ("PSR"), but at the sentencing

hearing the court ordered the probation officer to amend the PSR

to include it.1 Based on the report, Ayala-Lugo asked the court

1 The Ramos Report was created after Ayala-Lugo had requested that his sentencing be delayed "in order to allow for [a] psychological examination and submission of [a] defense sentencing memorandum." The court granted this request, and the

- 3 - to consider, under U.S.S.G. § 5K2.13, a downward departure from

the guidelines range because of Ayala-Lugo's alleged diminished

capacity. The government contested this departure, arguing that

Ayala-Lugo had a consensual relationship with the same partner for

at least 15 years and had worked for over a year as a barber,

showing that he had "been operating and living a more or less

normal life." It also told the court that, in connection with his

2008 conviction, Ayala-Lugo had been "in charge of maintaining and

distributing narcotics at the drug point to the sellers" and "would

also collect the proceeds," showing that he had higher-level

responsibilities and "was the person that someone at a higher

position trusted." Ayala-Lugo also argued for a lower sentence

because "there is a sentencing disparity when you compare Puerto

Rico sentences with national sentences" and because other courts

are "disavow[ing] the guidelines and are pinning down sentences

that are lower than the guidelines." The court said that the

defense's sentencing memorandum "was very well written, very

thorough, and [that it was] certainly considering it."

Ramos Report was produced two weeks before sentencing occurred on October 17, 2018. The PSR did not include it because the PSR was prepared in April 2018. The court told Ayala-Lugo's counsel that it was "going to include [the Ramos Report] in the [PSR]" and that he had given "a very good explanation of what's in that report." The government did not object to including the Ramos Report in the PSR.

- 4 - After hearing both sentencing requests, the court

explained the factors leading to the calculation of Ayala-Lugo's

guidelines sentence. When discussing Ayala-Lugo's criminal

history, in addition to mentioning his past convictions, the court

stated without further comment that Ayala-Lugo had been

adjudicated as a juvenile and had been arrested in connection with

certain incidents that did not result in convictions. It then

stated that "a guideline sentence in this case is appropriate" and

sentenced Ayala-Lugo to forty-six months' imprisonment, the high

end of the guidelines range, to be followed by a three-year term

of supervised release. It said that in reaching its conclusion it

had considered the "sentencing factors set forth in [

(a)], defense counsel's thorough argument, the government's

argument," and "the report from Dr. Ramos."

Ayala-Lugo's counsel objected to the sentence "on

substantive and procedural grounds, specifically the Court's

unwillingness to . . . give us the departure or variance based on

the diminished capacity." In response, the court stated that it

"spoke with the probation officer, and his original recommendation

[before seeing the Ramos Report] was above the guidelines. And it

was because of Dr. Ramos' report that he convinced me to give a

guideline sentence."

Immediately after the hearing described above, the court

sentenced Ayala-Lugo for violating the terms of his supervised

- 5 - release. Ayala-Lugo's counsel argued that the court should

consider that the § 922(g)(l) sentence "represents and includes an

enhancement for being on supervision" and requested that any

sentence based on the supervised release violation be served

concurrently with Ayala-Lugo's earlier sentence. The government

requested a midlevel guidelines sentence. The court stated that

the guidelines imprisonment range for this offense was four to ten

months, which Ayala-Lugo did not challenge, but that the "guideline

sentence does not reflect the seriousness of Mr. Ayala's breach of

trust and does not promote respect for the law." The court

explained that Ayala-Lugo "has demonstrated an inability to live

a law-abiding lifestyle, as evidenced by becoming involved in new

criminal conduct just four months after his supervised release

term commenced" and that "a guideline sentence does not protect

the public." It stated that pursuant to

(e)(3),

because Ayala-Lugo was on supervised release for a class A felony,

it could impose a sentence of not more than five years. It then

sentenced Ayala-Lugo to eighteen months' imprisonment for

violating the terms of his supervised release to be served

consecutively to the forty-six month sentence the court had imposed

earlier. Ayala-Lugo's attorney stated that "[t]he defense objects

to the Court's sentence on the violation of supervision as

procedurally and substantively unreasonable" but made no further

argument on this point.

- 6 - Ayala-Lugo timely appealed his sentence for violating

(g)(l). He timely appealed his revocation sentence

after the district court granted his motion for an extension of

time to do so.

II. Analysis

Our review of a district court's sentence for

reasonableness has a procedural and substantive component. See

United States v. Politano,

(1st Cir. 2008). The

procedural inquiry asks whether the district court made any errors

like "failing to calculate (or improperly calculating) the

Guidelines 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." Id. (alteration in original) (quoting

Gall v. United States,

(2007)). If the sentence

is procedurally sound, we then consider the totality of the

circumstances to review its substantive reasonableness.

"[W]e

will vacate a procedurally correct sentence as substantively

unreasonable only if it lies 'outside the expansive boundaries'

that surround the 'universe' of reasonable sentences." United

- 7 - States v. Coombs,

(1st Cir. 2017) (quoting United

States v. Matos-de-Jesús,

(1st Cir. 2017)).

Generally, we review sentencing decisions for abuse of

discretion. See United States v. Arroyo-Maldonado,

(1st Cir. 2015). However, if "a defendant fails to preserve

an objection below, the plain error standard supplants the

customary standard of review."

(quoting United States v.

Fernández–Hernández,

(1st Cir. 2011)). To prevail

on plain error review, the defendant 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."

(quoting United States v. Medina–

Villegas,

(1st Cir. 2012)).

A. Ayala-Lugo's

(g)(l) Sentence

Ayala-Lugo argues the court made three procedural errors

related to his § 922(g)(l) sentence. First, he argues the court

erred because it "made no findings concerning arguments for a

variance based on [Ayala-Lugo's] cognitive impairment" and chose

to "automatically apply the guidelines and impose a sentence in

the higher end" of the guidelines sentencing range. Because Ayala-

Lugo objected to the district court's decision not to reduce his

- 8 - sentence due to his alleged diminished capacity, we review that

argument for abuse of discretion.

The court said on multiple occasions that it considered

Ayala-Lugo's argument on this point. It described his counsel's

memorandum as "very thorough and very informative." The court

said that it chose not to apply an upward variance to Ayala-Lugo's

sentence because of the Ramos report detailing his diminished

capacity. It also explained that its guidelines sentence "protects

the public from further crimes by Mr. Ayala." Cf. U.S.S.G.

§ 5K2.13 (stating that a downward departure for diminished

capacity is not appropriate if the defendant's offense or criminal

history "indicate a need to protect the public"). The court did

not automatically apply a guidelines sentence and there was no

procedural error in refusing to grant a downward departure.

Ayala-Lugo's next two arguments are that the court

procedurally erred when it failed to explain why it rejected his

§ 3553(a)(6) sentencing disparity argument and when it allegedly

relied on his past arrests (which did not result in convictions)

at sentencing. Because he did not preserve these issues, we review

for plain error. Arroyo-Maldonado,

.

As to the court's alleged failure to address

Ayala-Lugo's sentencing disparity argument, the court stated that

it considered all of the § 3553(a) factors, a statement that is

"entitled to significant weight." United States v. Santiago-

- 9 - Rivera,

(1st Cir. 2014). It "need not verbalize

its evaluation of each and every [§] 3553(a) factor." United

States v. Hassan-Saleh-Mohamad,

(1st Cir. 2019)

(alteration in original) (quoting United States v. Reyes-Rivera,

(1st Cir. 2016)). Further, the district court did

explain its rejection of the sentencing disparity argument. It

stated that how other districts handle sentencing is "up to them,"

that "[t]hey just think that in many cases it's appropriate to

sentence someone below the guidelines," and that "[m]aybe they

should start sentencing within the guidelines range, and [their]

large amount of offenses may go down, like they are going down

here." There was no plain procedural error.

As to Ayala-Lugo's arrests, the court merely recited

them at sentencing and noted that they did not result in

convictions. It did not rely on them in imposing its sentence, so

it did not err. See United States v. Rodríguez-Reyes,

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

,

49–50 (1st Cir. 2016).

Ayala-Lugo's argument that his sentence was

substantively unreasonable also fails. His within-guidelines

sentence is presumptively reasonable and, to succeed, he "must

adduce fairly powerful mitigating reasons and persuade us that the

district court was unreasonable in balancing pros and cons."

United States v. Cortes-Medina,

(1st Cir. 2016)

- 10 - (quoting United States v. Clogston,

(1st Cir.

2011)). The district court explained that its guidelines sentence

was "appropriate taking into consideration everything the Court

has mentioned, Mr. Ayala's prior involvement with the criminal

justice system, the report from Dr. Ramos, [and] the information

contained in the pre-sentence investigation report." In

particular, it emphasized that Ayala-Lugo had committed a new crime

after being on supervised release for only four months. Because

the court gave a "plausible sentencing rationale and [reached] a

defensible result," its sentence is substantively reasonable.

United States v. Martin,

(1st Cir. 2008).

B. Ayala-Lugo's Supervised Release Violation Sentence

Next, Ayala-Lugo challenges the procedural and

substantive reasonableness of his supervised release violation

sentence.2 We apply plain error review, as Ayala-Lugo made only

"a general objection" to the reasonableness of his sentence, which

is "'not sufficient to give the district court notice of the

specific issue raised' on appeal." United States v. Hurley, 842

2 The government argues that Ayala-Lugo's appeal of this sentence was untimely because he filed a notice of appeal forty- one days after judgment was entered. See Fed. R. App. P. 4(b)(1)(A)(i); United States v. Gonzalez-Rodriguez,

(1st Cir. 2015). However, Ayala-Lugo sought and received an extension of time from the district court to file a notice of appeal, so his appeal was timely. See Fed. R. App. P. 4(b)(4).

- 11 - F.3d 170, 173 (1st Cir. 2016) (quoting United States v. Ríos–

Hernández,

(1st Cir. 2011)).

Ayala-Lugo argues that his revocation sentence was

procedurally unreasonable because the court did not consider his

argument "that the underlying offense was already accounted for in

the guidelines calculations" or his recommendation "that the

[revocation] sentence be concurrent with the sentence imposed for

the underlying offense" (emphasis omitted). But the court did

consider and reject that argument and recommendation at

sentencing. It said it was not persuaded because the fact that

his § 922(g)(l) guidelines sentence was enhanced because he was on

supervised release "happens in every case." See Coombs,

("[T]here is no legal impediment in sentencing the defendant

both as a criminal and as a supervised release violator.").

His sentence was also substantively reasonable. The

court explained that it had considered the factors in

(a) and the guidelines calculation. It emphasized that

Ayala-Lugo had committed a new crime only four months after his

supervised release term began, demonstrating "an inability to live

a law-abiding lifestyle." It reasoned that because a guidelines

sentence "does not reflect the seriousness of Mr. Ayala's breach

of trust[,] does not promote respect for the law," and "does not

protect the public from further crimes by Mr. Ayala," an 18-month

sentence was appropriate. That sentence was well below the five-

- 12 - year statutory maximum applicable here. See

(e)(3). The court's reasoning was plausible, and it reached

a defensible result. See Martin,

.

III. Conclusion

Affirmed.

- 13 -