United States Court of Appeals For the First Circuit

No. 19-2151

UNITED STATES,

Appellee,

v.

ANGEL MIGUEL CARRASQUILLO-SÁNCHEZ,

Defendant, Appellant.

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

[Hon. Aida M. Delgado-Colón, U.S. District Judge]

Before

Howard, Chief Judge, Barron, Circuit Judge, McAuliffe,* District Judge.

Rafael F. Castro Lang for appellant. Francisco A. Besosa-Martínez, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

August 16, 2021

* Of the District of New Hampshire, sitting by designation. BARRON, Circuit Judge. Angel Miguel Carrasquillo

Sánchez ("Carrasquillo") received a forty-eight-month prison

sentence after entering a guilty plea to one count of firearm

possession in violation of

(g)(3) and 924(a)(2).

Carrasquillo challenges the procedural and substantive

reasonableness of that sentence. Because we conclude that the

District Court plainly erred in failing to provide a sufficient

case-specific explanation for its upward variance from the

applicable sentencing range under the United States Sentencing

Guidelines, we vacate Carrasquillo's sentence and remand for

resentencing.

I.

Carrasquillo was arrested by local police officers on

May 21, 2019, in the afternoon in Loíza, Puerto Rico, following a

traffic stop. At the time of his arrest, Carrasquillo was

travelling in a car with three other individuals -- among them his

cousin. Carrasquillo was in the possession of a Glock pistol that

had been modified to fire automatically. That firearm was loaded

with twenty-nine rounds of ammunition. Five magazines that

contained an additional 128 rounds of ammunition lay next to that

firearm in the car. Carrasquillo's cousin, too, carried a loaded

firearm and additional magazines and rounds of ammunition.

On May 30, 2019, a federal grand jury returned an

indictment against Carrasquillo and his cousin. The indictment

- 2 - charged Carrasquillo with possession of a machinegun in violation

of

(o) and 924(a)(2) (Count One) and with

possession of a firearm by a person "who is an unlawful user

of . . . any controlled substance" in violation of

(g)(3) and 924(a)(2) (Count Two).

Carrasquillo entered a guilty plea on July 24, 2019, to

the second of these two counts. In his plea agreement, he admitted

that he was an unlawful user of a controlled substance because he

had been "a habitual user of marihuana and smoke[d] 3 joints of

marihuana a day since he was 17 years old." Carrasquillo and the

government also agreed to advise the District Court that for

purposes of calculating Carrasquillo's Guidelines sentencing range

("GSR"), his Total Offense Level ("TOL") was seventeen. They

further agreed that they would each recommend a prison sentence of

twenty-four months.

At the sentencing hearing on October 21, 2019, the

District Court followed the plea agreement's advisory calculation

of Carrasquillo's TOL. It did so by finding first that

Carrasquillo's Base Offense Level ("BOL") was twenty pursuant to

U.S.S.G. § 2K2.1(a)(4), in part because his offense involved a

"semi-automatic weapon that is capable of accepting a large

capacity magazine or a firearm described in 26 [U.S.C.]

§ 5845[(a)]." It then applied a three-level reduction pursuant to

U.S.S.G. § 3E1.1(a) and (b). The District Court also found that

- 3 - Carrasquillo had no prior known arrests or convictions. Based on

Carrasquillo's TOL and criminal history, the District Court

calculated Carrasquillo's GSR to be twenty-four to thirty months

of imprisonment.

The District Court, however, imposed a variant sentence

of forty-eight months -- eighteen months more than the top of the

GSR and twice the length of the sentence recommended by both

parties. Carrasquillo timely appealed.

II.

Carrasquillo argues on appeal that his forty-eight-month

prison sentence is both procedurally and substantively

unreasonable. We review his claim of procedural error first. See

Gall v. United States,

(2007).

Carrasquillo argues that the District Court "failed to

properly apply the 18 U.S.C. [§ ]3553(a) factors" and "based its

sentence on clearly erroneous facts." That is so, he contends,

because the only individualized finding on which the District Court

relied for its upward variance was one that it necessarily had

already taken into account in its calculation of the GSR --

Carrasquillo's "possession of a machinegun and an extended

magazine." In so arguing, he acknowledges that the District Court,

in explaining the variance, also relied on what it described as

"the problem of criminality in P.R." and on several specific

instances of gun violence in the Commonwealth. But, Carrasquillo

- 4 - argues, that aspect of its explanation cannot suffice to render

the explanation sufficient because the specific incidents were

"totally disassociated [from] his offense conduct" and the concern

about the general problem of crime was not adequately linked to

his particular conduct beyond his having possessed a machine gun.

The government contends that Carrasquillo did not

preserve this procedural challenge during the sentencing hearing

and that we should therefore review the District Court's

explanation of its variant sentence only for plain error. We

agree.

During the sentencing hearing, Carrasquillo's counsel

voiced only a single objection to the variant sentence. That

objection was "to the length of the sentence imposed." His

objection thus appeared to concern only the substantive

unreasonableness of his sentence due to its length and independent

of the adequacy of the explanation offered by the District Court

in support of it. Cf. United States v. Rivera-Berríos,

(1st Cir. 2020) (concluding that the defendant preserved

his procedural claim below because "appellant's counsel made

clear" not only "that he believed that the sentence was

'excessive,'" but also "that the court had not articulated any

cognizable grounds that would support an upward variance"). For

that reason, we review his claim of procedural error for plain

error. See United States v. Perretta,

(1st Cir.

- 5 - 2015); United States v. Contreras-Delgado,

(1st

Cir. 2019).

Under this standard of review, a 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." Perretta,

(quoting United States v. Duarte,

(1st Cir. 2001)).

We find that Carrasquillo satisfies all these requirements.

We start with the basics. A district court "must

adequately explain the chosen sentence to allow for meaningful

appellate review and to promote the perception of fair sentencing."

Gall,

. When a district court varies from the GSR,

as it did in this case, moreover, we "must consider the extent of

the deviation and ensure that the justification is sufficiently

compelling to support the degree of the variance." Id.; see also

United States v. Ofray-Campos,

(1st Cir. 2008) ("The

farther the judge's sentence departs from the guidelines

sentence . . . the more compelling the justification based on

factors in section 3553(a) that the judge must offer in order to

enable the court of appeals to assess the reasonableness of the

sentence imposed." (quoting United States v. Dean,

(7th Cir. 2005) (Posner, J.) (ellipses in original)).

- 6 - Here, the District Court imposed an upward variance of

eighteen months from the applicable GSR of a prison sentence of up

to thirty months. That is a significant deviation. So, the key

issue concerns the sufficiency of the District Court's explanation

for that variance, given its magnitude.

The District Court did express special concern that

Carrasquillo had bought a firearm "that had been modified to shoot

automatically" -- "[w]hat we call a machine gun" -- even though

"he admitted that there are no threats against him." The District

Court added "that machine guns [are] one of the most dangerous

weapons in terms of [their] firing capabilities."

It is clear, however, that the possession of the

machinegun alone could not justify such a variance. We have

plainly stated that "[w]hen a § 3553(a) consideration is already

accounted for in the guideline range, a sentencing Court 'must

articulate specifically the reasons that this particular

defendant's situation is different from the ordinary situation

covered by the guidelines calculation.'" United States v. Rivera-

Santiago,

(1st Cir. 2019) (quoting United States

v. Guzman-Fernandez,

(1st Cir. 2016)).

Carrasquillo's GSR had been calculated pursuant to U.S.S.G.

§ 2K2.1(a)(4) based in part on the finding that he possessed a

"semi-automatic weapon that is capable of accepting a large

capacity magazine or a firearm described in 26 [U.S.C.]

- 7 - § 5845[(a)]." Thus, because the concerns that the District Court

highlighted about the dangers posed by machine guns and the

defendant's lack of need for such a weapon "are universal in their

application, and we have no reason to believe that they were not

factored into the mix when the Sentencing Commission set the base

offense level for the offense of conviction," Rivera-Berríos,

, Carrasquillo's possession of a machinegun alone could

no more justify this variant sentence than it could justify the

one at issue in Rivera-Berríos.

After all, in that case, too, the district court

expressed the concerns that machineguns are "highly dangerous and

unusual," can fire over a thousand rounds per minute, and exist

largely "on the black market" as explanations for its variance.

Yet, we held that those concerns about machineguns could not

supply the basis -- at least on their own -- for an upward variance

of the same magnitude as here and concluded for that reason that

the district court failed to explain why the defendant's machinegun

possession "was entitled to extra weight."1

1 The District Court did also consider Carrasquillo's "history of substance abuse, specifically marijuana, which he has used since age 17. That is, for the past five years." But, insofar as the District Court viewed this personal characteristic as an aggravating factor, it had already taken account of that factor when it calculated Carrasquillo's GSR pursuant to U.S.S.G. § 2K2.1(a)(4) and

(g)(3) based on Carrasquillo's pleading guilty in part to being "an unlawful user of . . . any controlled substance." And, the District Court nowhere explained why that element was nevertheless entitled to extra weight.

- 8 - The government nonetheless contends that the District

Court adequately explained why this case falls outside of the

heartland of the applicable GSR because the District Court did not

rely solely on those expressions of concern about the dangers

associated with machineguns in explaining the variant sentence.

The government argues that the District Court also pointed to

community-based considerations of gun violence in Puerto Rico in

explaining why "the guidelines do not reflect accurately the

seriousness of the offense."

It is true that "[g]eographical considerations can be

relevant at sentencing, as 'the incidence of particular crimes in

the relevant community appropriately informs and contextualizes

the relevant need for deterrence.'" United States v. Ortiz-

Rodríguez,

(1st Cir. 2015) (quoting United States

v. Flores-Machicote,

(1st Cir. 2013)); see also

United States v. Rivera-González,

(1st Cir.

2015) (finding "the high incidence of violent crime in Puerto Rico"

to be an appropriate consideration at sentencing). In addition,

the District Court did not simply rely on the community-based

factors to the exclusion of any consideration of the individual

circumstances of this defendant. As the government rightly points

out, the District Court did attend to the various mitigating

factors that the defendant put forth -- among them, his age, place

- 9 - of residence, education, employment, medical history, and lack of

prior known arrests and convictions.

But, Carrasquillo pointed to those mitigating factors in

the course of arguing for a more lenient sentence than the one he

received -- and, indeed, a more lenient one than the one

recommended by the top end of the GSR itself -- as both he and the

government sought a sentence at the very bottom of the GSR of just

twenty-four months. There is no sense in which the District Court,

by considering those mitigating factors, was offering an

individualized basis for the upward variance that it imposed.

Thus, the critical question is whether the District

Court's reliance on the state of violence associated with

machineguns in Puerto Rico could support that upward variance,

even though the dangers posed by machineguns could not.

Carrasquillo argues that prior precedent precluded the District

Court from justifying the variance wholly on its observations about

the state of things in Puerto Rico, because the District Court

needed to anchor its consideration of Puerto Rico's high incidence

of gun violence as part of its § 3553(a) analysis "in individual

factors related to the offender and the offense," Rivera-González,

, and failed to do so.

As we explained in Ortiz-Rodríguez, "'the section

3553(a) factors must be assessed in case-specific terms,' and a

sentencing court's 'appraisal of community-based considerations

- 10 - does not relieve its obligation to ground its sentencing

determination in individual factors related to the offender and

the offense.''"

(internal citations omitted;

first quoting Flores-Machicote,

; and then quoting

Rivera-González,

). Because we then found that the

district court had not grounded its community-based considerations

in "case-specific terms," despite its consideration of mitigating

factors, we concluded that the district court procedurally erred

in failing to explain adequately its upward variance by fifteen

months. Id. at 19.

Likewise, we held in Rivera-Berríos,

,

that "[u]nmoored from any individual characteristics of either the

offender or the offense of conviction, . . . [the district court's

community-based concerns] cannot serve as building blocks for an

upward variance" and concluded that the district court there

procedurally erred because it "constructed no such mooring."

And that was so, we made clear, because a "case-specific nexus"

was "totally lacking" between the community-based considerations

in Puerto Rico that had been invoked to support the upward variance

and the nature of the defendant's conduct beyond his possession of

a machinegun.

.

Here, the District Court found that "the type of this

possession of weapons is what basically has the society in a state

of siege," and that "in Puerto Rico right now, [these types of

- 11 - weapons are] in the hands of individuals without licenses that are

being used . . . in public places in broad daylight." The District

Court elaborated on this explanation by giving nine examples of

particular instances of machinegun shootings in Puerto Rico during

the preceding months and by comparing Puerto Rico's crime rate

with that of large U.S. cities and countries in Central America,

South America, and the Caribbean. It then concluded: "I don't

think that the guidelines have a way to reflect the seriousness of

the possession of this type of weapon and the harm that is causing

in Puerto Rico society. . . . Therefore, the Court understands

that there's a need for a variant sentence."

The government contends that some of the specific

examples of machinegun shootings in Puerto Rico were anchored in

individual factors related to Carrasquillo and his offense. That

is so, it argues, because some of the examples, just like

Carrasquillo's offense, involved the possession of machineguns

during daylight hours in public, and sometimes specifically inside

vehicles on public roads.

The District Court was clear, however, that "the driving

force behind the upward variance," Rivera-Berríos,

, was, in its own words, "the possession of this type of weapon"

itself. Thus, here, just as in Ortiz-Rodríguez and Rivera-Berríos,

the District Court considered the high incidence of gun violence

in Puerto Rico "unmoored from any individual characteristics of

- 12 - either the offender or the offense of conviction . . . [its

community-based concerns] cannot serve as building blocks for an

upward variance." Rivera-Berríos,

.2

The government does also argue that certain facts

referenced by the Presentencing Report ("PSR"), namely that

Carrasquillo possessed an additional five magazines and 128 rounds

of ammunition at the time of his arrest, and that his cousin too

possessed additional magazines and ammunition in the same car,

should be used to supplement the District Court's explanation and

that these facts provides an additional basis on which we should

conclude that its explanation was adequate. But, while "a court's

reasoning can often be inferred by comparing what was argued by

the parties or contained in the pre-sentence report with what the

judge did," such inferences must be anchored in "what the judge

did." United States v. Jiménez–Beltre,

, 519 (1st

Cir. 2006) (en banc), abrogated on other grounds by Rita v. United

States,

(2007). And here, nothing in the District

Court's summary of the facts and weighing of the sentencing factors

2 The government at one point suggests that we should understand the District Court's community-based considerations as a policy disagreement with the Guidelines, as permitted by Kimbrough v. United States,

(2007). But, the District Court nowhere indicated that it was relying on those community- based considerations for a purpose other than to "inform[] and contextualize[] the relevant need for deterrence" as part of its § 3553(a) analysis. Ortiz-Rodríguez,

(quoting Flores-Machicote,

).

- 13 - indicates that it relied for its variant sentence on Carrasquillo's

additional magazines and ammunition.

Prior to imposing the forty-eight-month sentence, the

District Court only mentioned that Carrasquillo possessed a "large

magazine with capacity for 31 rounds." And its express reference

to the PSR was limited to the statements that it had examined the

PSR and that it had found the PSR's "guideline computation" to be

correct. It was only when enumerating the forfeiture conditions

after it had already imposed the sentence of imprisonment that the

District Court mentioned the additional magazines and rounds as

well. Nor did the government argue below to the District Court

that those additional magazines and rounds warranted a variant

sentence. Indeed, as we have noted, the government recommended a

low-end guideline sentence of twenty-four months.

Defendants are entitled to a "sufficiently

particularized [and] compelling" explanation when they are subject

to a significant upward variance. Ofray-Campos,

.

Here, the District Court provided no such explanation because all

the factors on which it relied for its upward variance were either

already factored into Carrasquillo's GSR or not specific to his

case. Cf. United States v. Vázquez-Martínez,

, 24-25

(1st Cir. 2016) (finding no plain error because the district court

explained its upward variance based not only on "factors already

included in the Guidelines calculations," such as the defendant's

- 14 - "criminal history and drug addiction," but also on his "subsequent

probation revocation, his prior adult arrest, and the

circumstances surrounding his current offense," including that he

"kept his machinegun . . . in a residence he shared with three

minor children"). In failing to provide an adequate explanation,

the District Court clearly and obviously erred. And the resulting

upward variance affected Carrasquillo's substantial rights and

seriously impaired the fairness of the judicial proceedings. See

United States v. Rivera-Gonzales,

(finding that

imposition of an upward variance without adequate explanation

impairs "the fairness, integrity, or public reputation of the

judicial proceedings" (internal quotation marks omitted) (quoting

United States v. Perazza-Mercado,

(1st Cir.

2009))). We therefore conclude that the District Court committed

plain procedural error when sentencing Carrasquillo to forty-eight

months. Having thus concluded, we need not reach Carrasquillo's

claim of substantive error. See United States v. Miranda-Díaz,

(1st Cir. 2019).

We close, though, with a final observation. We recognize

that district courts must be given some leeway in not only

selecting a sentence but also explaining their reasons for having

selected it. That is especially so when, as here, no objection

has been made by the defendant to the district court that it has

failed to offer an adequate explanation.

- 15 - We recognize, too, both that there has been a mass of

appellate rulings from our circuit regarding sentencing

explanations and their requirements prior to the sentencing that

occurred here and that our decision in Rivera-Berríos postdated

not only that mass of rulings but also the sentencing in this very

case. The District Court thus did not have the benefit of the

decision of ours that is clearest in specifying what an explanation

for a variance must entail.

Nonetheless, we had decided Ortiz-Rodríguez prior to

this sentencing. And Rivera-Berríos, we think, now makes it

perfectly clear that we meant what we had previously said about

the obligation of district courts when varying upward to offer

explanations for the deviation that are commensurate in their depth

with the magnitude of that deviation. Thus, even if at the time

this sentence was handed down, the inadequacy of the explanation

was not clear or obvious error, it is clear and obvious that such

an explanation does not suffice under our extant precedent. For

that reason and for the reason that the federal sentencing regime

aims to "bring about greater fairness in sentencing through

increased uniformity," Rita,

, resentencing is

required.

III.

For the foregoing reasons, we order Carrasquillo's

sentence to be vacated and remand for resentencing.

- 16 -