United States Court of Appeals For the First Circuit

No. 20-1072

UNITED STATES OF AMERICA,

Appellee,

v.

CARLOS A. RODRÍGUEZ-CRUZ,

Defendant, Appellant.

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

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

Before

Kayatta, Selya, and Barron, Circuit Judges.

José B. Vélez Goveo and Vélez & Vélez Law Office on brief for appellant. W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá- Almonte, Assistant United States Attorney, Chief, Appellate Division, and Julia M. Meconiates, Assistant United States Attorney, on brief for appellee.

May 12, 2021 SELYA, Circuit Judge. This sentencing appeal is built

on a porous foundation. In his main line of attack, defendant-

appellant Carlos A. Rodríguez-Cruz assails the district court for

imposing a sentence based on an incorrect statement of a salient

fact concerning the defendant's criminal history. The defendant,

though, glides over the district court's later correction of its

misstatement — a correction that the court made before imposing

the sentence. Concluding that the sentence was not in any way

premised on a misapprehension of fact but, rather, reflected a

plausible sentencing rationale and achieved a defensible result,

we summarily affirm.

We briefly rehearse the facts and travel of the case.

When — as in this case — a criminal defendant appeals the sentence

imposed following a guilty plea, "we glean the relevant 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. Vargas,

(1st Cir. 2009).

In June of 2012, the defendant was involved in an

altercation at a pub in Salinas, Puerto Rico, during which he drew

a pistol and pointed it at a police officer. After a brief chase,

the defendant was apprehended. He was subsequently convicted in

the federal district court of possessing cocaine with the intent

- 2 - to distribute it. See

(a)(1). The court sentenced

him to serve an incarcerative term of forty-eight months.

The defendant served his prison sentence and, in

February of 2016, began serving a term of supervised release. Just

over six months later, United States Marshals and federal probation

officers — having received information that the defendant was up

to his old tricks and again dealing drugs — conducted a search-

and-seizure operation at the defendant's residence in Guayama.

For aught that appears, the search turned up no drugs, but a

handgun was found in a trash can in the defendant's bedroom. The

gun was loaded with fourteen rounds of ammunition (including one

in the chamber). As a result, the defendant was arrested.

A federal grand jury sitting in the District of Puerto

Rico charged the defendant with a single count of possessing a

firearm as a convicted felon. See

(g)(1),

924(a)(2). After initially maintaining his innocence, the

defendant reversed his field and entered a straight guilty plea on

August 26, 2019. The probation department prepared a PSI Report,

which recommended a guideline sentencing range (GSR) of thirty to

thirty-seven months. Neither the government nor the defendant

disputed this range.

At the disposition hearing, the district court adopted

the recommended GSR. In preliminary remarks, the court noted that

the defendant previously had been sentenced for "a firearms

- 3 - incident involving a police officer"; that he had eventually been

placed on supervised release as a result of that conviction; and

that, while on supervised release, a search of his home led to his

present predicament. The court proceeded to review the sentencing

factors limned in

(a) and emphasized that, given

the facts and circumstances of the case at hand, a need to deter

and promote respect for the law was at the forefront of the court's

thinking. Along with these factors, the court said that it would

give special weight to the facts of the offense, the defendant's

characteristics, and the possibility of rehabilitation.

At the end of its initial assessment, the court concluded

that this was "one of the[] cases" in which the defendant "was

showing no respect for the law." Buttressing this conclusion, the

court stated that it could not "ignore" the fact that, while in

custody, the defendant had "over 30 disciplinary sanctions ranging

from A to Z of all sorts."1 The court said that it had "never seen

such a wide array" of disciplinary infractions. That record, in

the court's view, demonstrated that the defendant was "a person

who doesn't show respect for the law."

1 The defendant's thirty-three disciplinary infractions — fifteen of which were in connection with his confinement for the prior offense and eighteen of which were in connection with his pretrial confinement for the offense of conviction — ranged from possessing dangerous weapons to setting a fire.

- 4 - The court then asked to hear from the parties. The

government advocated for an upwardly variant sentence of fifty-

one months' imprisonment. In support, it stressed that the

defendant committed the offense of conviction while on supervised

release and that he was found with a gun within one year of being

discharged from prison. It also described the defendant's splotchy

disciplinary history while in custody, prompting the court to

remark that it appeared as if the defendant had "exhausted the

[federal Bureau of Prisons'] administrative offense list."

Defense counsel sought to change the subject, emphasizing that the

defendant already had been confined for twenty-one months in

pretrial detention. Since the low end of the GSR was thirty months

and good-time credits would shrink that number even further,

counsel suggested that the court impose a sentence of time served.

Counsel added that the defendant's record of disciplinary

infractions was largely attributable to "significant issues

concerning substance abuse and mental health" and suggested that

keeping the defendant in federal custody would not provide the

treatment needed for those issues.

The district court told the parties that it did not "have

an automatic formula for sentencing weapons offenses." The court

then observed that "this [was] not a first time weapon offense, it

[was] the second weapons offense back to back." Defense counsel

immediately interjected, stating that the defendant's prior

- 5 - offense was not a weapons offense but, rather, a drug-trafficking

offense. The court responded that the arrest leading to the drug-

trafficking charge "arose out of a firearms incident." Reading

from a section of the PSI Report to which the defendant had not

objected, the court clarified that the previous conviction was a

drug-related offense but resulted from a dispute in which the

defendant pointed a gun at a police officer.

Striving to ensure that everyone was on the same page,

the court spelled out its understanding that the defendant "did

not plead to a firearms offense before a federal court but he does

have that drug offense, and there's no dispute that a firearm was

involved." The court then returned to the fact that the defendant

was in the midst of a term of supervised release when he committed

the offense of conviction and commented that "a sentenced

supervisee does not get to choose when to turn the supervised

release on and off." It summed up that "the facts do not paint

pretty in this case."

When all was said and done, the district court determined

that the case warranted an upward variance and that a forty-eight-

month sentence was sufficient but not greater than necessary.

Although it was "contemplating a higher variance," the court was

dissuaded from that course by the persuasive force of defense

counsel's mitigating arguments. When the court imposed the forty-

- 6 - eight-month sentence, the defendant objected to it as

substantively unreasonable. This timely appeal followed.

"Appellate review of a criminal defendant's claims of

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

Miranda-Díaz,

(1st Cir. 2019). We first review

any claims of procedural error and, if we find the challenged

sentence to be procedurally sound, we then review any challenge to

its substantive reasonableness. See

In this instance, the

defendant frames his claim of sentencing error solely as a

challenge to the substantive reasonableness of the imposed

sentence.

The defendant's principal claim of error posits that the

upwardly variant sentence was substantively unreasonable because

the sentencing court predicated the variance on a "specific set of

erroneous facts." Putting flesh on these bones, the defendant

contends that his variant sentence was "entirely tied to the

court's mistaken determination" that he had been convicted of a

prior firearms offense. And to make a bad situation worse, the

defendant says, the court did not address his need for substance

abuse and mental health treatment.

Challenges to the substantive reasonableness of criminal

sentences engender abuse-of-discretion review. See Holguin-

Hernandez v. United States,

(2020); United

States v. Bruno-Campos,

(1st Cir. 2020). We

- 7 - approach such challenges mindful that "[t]here is no one reasonable

sentence in any given case but, rather, a universe of reasonable

sentencing outcomes." United States v. Clogston,

(1st Cir. 2011). Our task, then, is "to determine whether the

[challenged] sentence falls within this broad universe." United

States v. Rivera-Morales,

(1st Cir. 2020).

Our case law makes pellucid that the hallmarks of a

substantively reasonable sentence are a plausible sentencing

rationale and a defensible result. See, e.g., Bruno-Campos,

; United States v. Cameron,

(1st Cir.

2016); Clogston,

. Where, as here, a variant

sentence is imposed, the district court must provide an adequate

explanation for the variance. See Bruno-Campos,

.

That prerequisite, though, "does not require the court to be

precise to the point of pedantry." United States v. Del Valle-

Rodríguez,

(1st Cir. 2014). It is against this

backdrop that we turn to the defendant's asseverational array.

As we have said, the defendant's most loudly bruited

claim is that the district court relied on erroneous information

in fashioning the sentence. To support this claim, the defendant

points to the court's admittedly incorrect statement that the

offense of conviction was the defendant's second conviction for a

weapons offense. The defendant, however, cherry-picks the

sentencing transcript and conveniently overlooks what transpired

- 8 - after the court made the incorrect statement: the court corrected

its error and left no doubt that it understood the circumstances

of the earlier offense.

We have explained before — and today reaffirm — that a

district court "must take pains to base sentencing judgments upon

reliable and accurate information." United States v. Tavano,

(1st Cir. 1993). In measuring adherence to this

standard, though, "[a] sentencing court's comments must be read as

a whole." United States v. Santa-Soler,

(1st Cir.

2021). A party cannot lift a single comment from the sentencing

dialogue and focus on it in splendid isolation. Here, the

sentencing transcript, read in its entirety, defenestrates the

defendant's claim of error.

The district court's brief mischaracterization of the

defendant's prior offense was promptly corrected. In this respect,

the record is luminously clear. When defense counsel called the

misstatement to the court's attention, the court conceded, "You

are correct . . . the [prior] conviction is for controlled

substances." The court went on to explain that a firearm was

nevertheless seen in the defendant's possession (indeed, it was

the pistol that brought the defendant to the officer's attention).

The short of it, then, is that, prior to pronouncing

sentence, the court both acknowledged and corrected its earlier

misstatement. When the sentencing transcript is read as a whole,

- 9 - there is nothing to impugn either the reliability or the accuracy

of the information upon which the court actually relied in imposing

the challenged sentence.

Here, moreover, the court lucidly articulated its

sentencing rationale, emphasizing that the defendant disregarded

the terms of his supervised release. The court reasonably

concluded that the facts of the case demonstrated that the

defendant was "a person who doesn't show respect for the law."

Given this supportable conclusion, it is difficult to fault the

court's determination that an upwardly variant sentence would both

serve to deter future misconduct and promote respect for the law.

See, e.g., Santa-Soler,

; United States v. Díaz-

Lugo,

(1st Cir. 2020). On this record, the

district court's sentencing rationale was plausible.

This brings us to the question of whether the forty-

eight-month sentence represents a defensible result. The mere

fact that the sentence constitutes an eleven-month ratchet over

the top of the GSR, by itself, does not render the sentence

substantively unreasonable. See United States v. Flores-

Machicote,

(1st Cir. 2013). Rather, the inquiry

is fact-sensitive and case-specific. See United States v. Martin,

(1st Cir. 2008).

The facts of this case lend considerable support to the

extent of the upward variance. The defendant, a convicted felon,

- 10 - possessed a firearm while still on supervised release. What is

more, the offense of conviction occurred within a year of the

defendant's release from prison. Even without the long list of

disciplinary infractions that took place while the defendant was

in custody both before and after his commission of the offense of

conviction — which the district court said it was "not using [] to

enhance [the defendant's] punishment" — this case is easily

distinguished from the mine-run of offenses carrying the same GSR.

See Bruno-Campos,

; Del Valle-Rodríguez,

. Taking these circumstances into account, we

conclude that the resultant sentence, though upwardly variant, was

well within the realm of permissible results.

Nor is this conclusion undermined by the defendant's

unsupported assertion that the district court did not address

certain mitigating factors (such as his need for substance abuse

and mental health treatment). Although a sentencing court is duty-

bound to consider the section 3553(a) factors, it need not descant

upon each and every such factor. See Santa-Soler,

;

see also United States v. Butler-Acevedo,

(1st

Cir. 2011) (concluding that certain mitigating factors were

considered even though not referenced in court's stated

rationale).

Here, moreover, even though the district court did not

address the defendant's need for substance abuse and mental health

- 11 - treatment in haec verba before pronouncing sentence, it explicitly

stated that it had considered defense counsel's arguments in

mitigation. Indeed, the court indicated that it had imposed a

lighter sentence in consequence of those arguments. And to cinch

the matter, the court — after pronouncing the forty-eight-month

sentence — recommended both substance abuse and mental health

treatment during the defendant's incarcerative term. These

recommendations show, with conspicuous clarity, the court's

awareness of the defendant's continuing need for treatment.

We need go no further.2 For the reasons elucidated

above, the challenged sentence is summarily

Affirmed. See 1st Cir. R. 27.0(c).

2 For the sake of completeness, we note that some of the defendant's objections to the sentence might be characterized as procedural. See Del Valle-Rodríguez,

(explaining that "[t]he procedural dimension [of sentencing challenges] includes errors such as failing to consider appropriate sentencing factors, predicating a sentence on clearly erroneous facts, or neglecting to explain the rationale for a variant sentence adequately"). But because it is the defendant's burden to frame and develop his arguments, we have addressed his claims of sentencing error on their own terms. It is, however, plain that even if we recharacterized the claims as procedural instead of substantive, they would fail.

- 12 -