United States Court of Appeals For the First Circuit

No. 19-2033

UNITED STATES OF AMERICA,

Appellee,

v.

LUIS MERCED-GARCÍA,

Defendant, Appellant.

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

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

Before

Howard, Chief Judge, Selya and Gelpí, Circuit Judges.

David Ramos Pagan on brief for appellant. W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá- Almonte, Assistant United States Attorney, Chief, Appellate Division, and Robert P. Coleman III, Assistant United States Attorney, on brief for appellee.

January 25, 2022 SELYA, Circuit Judge. Defendant-appellant Luis Merced-

García was found in possession of a trove of guns, ammunition, and

drugs. The district court sentenced him to serve an eighteen-

month term of immurement on a drug-trafficking count and a

consecutive 144-month term of immurement on a firearms count. The

defendant appeals, arguing that his guilty plea is invalid because

the plea agreement lacked a particular signature and that his

sentence on the firearms count is both procedurally infirm and

substantively unreasonable. Concluding, as we do, that the

defendant's asseverational array lacks force, we affirm.

I

We briefly set the stage. Because this appeal "follows

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. Dávila-González,

(1st Cir. 2010) (quoting United States v. Vargas,

(1st Cir. 2009)).

On the heels of a search of a residence in which he was

staying and the discovery of a trove of guns, ammunition, and

drugs,1 a federal grand jury returned an indictment charging the

There is some indication in the record that one of the guns 1

was found in the defendant's automobile rather than in the dwelling. Given the way in which the defendant has framed his

- 2 - defendant and a confederate with, inter alia, aiding and abetting

the possession of a firearm in furtherance of a drug-trafficking

crime, see

(c)(1)(A), and aiding and abetting the

possession of cocaine with intent to distribute, see

(a)(1). In due season, the defendant entered into a plea

agreement (the Agreement) and pleaded guilty to both of these

counts. The district court accepted his guilty plea and ordered

the preparation of a PSI Report.

The district court convened the disposition hearing on

September 19, 2019. Both sides had filed sentencing memoranda,

and the court acknowledged its familiarity with those memoranda

and with the contents of the PSI Report. The guideline sentencing

ranges for the two counts were separate, and neither range is

seriously disputed here.2 For the drug-trafficking count, the

range was eighteen to twenty-four months; for the firearms count,

the range was the statutory mandatory minimum — sixty months.

The defendant asked the court to impose sentences on

both counts at the "lower end" of the guidelines. The government

arguments, nothing turns on this disparity and, thus, we do not pursue the point. 2 The guideline ranges were laid out in the PSI Report. At sentencing, neither side objected to these ranges, and the district court adopted them. Although the defendant claims in his brief — in conclusory fashion — that the district court failed to follow proper procedure in formulating the guideline ranges, that claim is totally undeveloped. Consequently, we deem it waived. See United States v. Zannino,

(1st Cir. 1990).

- 3 - recommended a twenty-four-month sentence on the drug-trafficking

count, to be followed by a 120-month sentence on the firearms

count. The district court sentenced the defendant to serve

eighteen months in prison on the drug-trafficking count, to be

followed by 144 months in prison on the firearms count. This

timely appeal ensued.

II

In this venue, the defendant assigns error in three main

respects. First, he claims that the lack of a particular signature

invalidated the Agreement and, thus, invalidated his guilty plea.

Second, he claims that his sentence on the firearms count is

procedurally flawed because, among other things, the district

court failed adequately to explain the sharp upward variance.

Third, he claims that his sentence on that count is substantively

unreasonable. We address these claims of error one by one.

A

To begin, the defendant argues that the Agreement — which

he signed — is nonetheless unenforceable because one section of

the Agreement, entitled "Stipulation of Facts," lacked his

signature (even though a signature line appeared at that point).

Because the defendant did not advance this argument below, our

review is for plain error. See United States v. Casiano-Santana,

(1st Cir. 2021); United States v. Duarte,

(1st Cir. 2001).

- 4 - We have made it clear that "[t]he plain error hurdle is

high." United States v. Hunnewell,

(1st Cir.

1989). To prevail on plain-error review, an appellant must

demonstrate "(1) that an error occurred (2) which was clear or

obvious and which not only (3) affected [his] substantial rights,

but also (4) seriously impaired the fairness, integrity, or public

reputation of judicial proceedings." Duarte,

. As

the party claiming plain error, the appellant "must carry the

devoir of persuasion as to all four of these elements." United

States v. Pinkham,

(1st Cir. 2018).

Here, plain error is plainly absent. Although the

stipulation of facts contained a line for the defendant's

signature, there is no reason to believe that such a signature was

essential to the validity of the Agreement. After all, the

defendant signed the Agreement itself, and he identifies no

statute, rule, or case law requiring that a stipulation of facts,

incorporated in a plea agreement, must be separately signed. We

have left no doubt that to qualify as plain error, an "error must

be 'indisputable' in light of controlling law." United States v.

Rabb,

(1st Cir. 2021) (quoting United States v.

Jones,

(1st Cir. 2014)). Bereft of supporting

authority, the error claimed in this case cannot surmount that

high bar. See United States v. Griffin,

(1st Cir.

2008) (explaining that when an appellant "cites no case remotely

- 5 - suggesting that the rule is otherwise . . . there cannot be plain

error").

In all events, the defendant — in order to show plain

error — bore the burden of demonstrating that the alleged error

affected his substantial rights. See Rabb,

. Here,

however, he has not made even a glimmer of a showing that the

unsigned stipulation of facts somehow prejudiced his case. For

one thing, both the defendant and his counsel signed the Agreement

itself, and the Agreement includes a clause indicating that the

stipulation of facts is incorporated into the Agreement. For

another thing, even though the defendant left blank the signature

line below the stipulation of facts, he nonetheless initialed both

pages of the Agreement on which the stipulation appears. In

addition, the defendant's counsel signed the stipulation of facts

on a separately provided signature line. And to cinch the matter,

the defendant — during the change-of-plea hearing — confirmed his

agreement with the government's oral presentation of the

stipulated facts. Any error attaching to the missing signature

could not, therefore, have affected the defendant's substantial

rights.

That ends this aspect of the matter. On the facts of

this case, the missing signature was a harmless oversight, and we

reject the defendant's belated claim that its absence invalidated

his guilty plea.

- 6 - B

This brings us to the defendant's claim that his upwardly

variant 144-month sentence on the firearms count is procedurally

unreasonable. This claim makes its debut in this court and, thus,

engenders only plain-error review. See Casiano-Santana,

; Duarte,

.

As we have said, the guideline sentence for the firearms

count was sixty months. See United States v. Vargas-García,

(1st Cir. 2015) (explaining that "the statutory

mandatory minimum sentence is the guideline sentence"); see also

USSG §2K2.4(b). Refined to bare essence, the principal thrust of

the defendant's claim is that the district court did not adequately

explain the sharp upward variance. We disagree.

When imposing a variant sentence, a sentencing court

must "state in open court . . . the specific reason for the

imposition of a [variant] sentence."

(c)(2). That

explanation, though, need not "be precise to the point of

pedantry." United States v. Del Valle-Rodríguez,

(1st Cir. 2014). We have repeatedly stated "that the

sentencing court need only identify the main factors behind its

decision." Vargas-García,

; see United States v.

González,

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

Clemente,

(1st Cir. 2016).

- 7 - In the case at hand, the sentencing court explained that

an upwardly variant sentence was necessary to "reflect[] the

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

protect[] the public from further crimes by [the defendant], and

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

noted that the defendant possessed what amounted to a small

arsenal: seven firearms and 1,616 rounds of ammunition. It

emphasized, moreover, that two of the firearms were machineguns

and vouchsafed that it "c[ould] conceive of few weapons that are

more dangerous than a machine gun."

The defendant denigrates this explanation, contending

that the factors the court relied on were "already accounted for

in the Guidelines." This contention is wide of the mark: it

overlooks that a sentencing court may rely on a factor already

considered in formulating the guideline sentence as long as the

court "articulate[s] specifically the reasons that this particular

defendant's situation is different from the ordinary situation

covered by the guidelines calculation." United States v. Zapete-

Garcia,

(1st Cir. 2006). The court below did

precisely that: the applicable statute and the associated

guideline provision contemplate the possession of only a single

firearm, see

(c)(1); USSG §2K2.4, yet the court

noted that the defendant possessed seven firearms, including two

machineguns, and a large cache of ammunition. Because the

- 8 - additional firearms (including the machineguns) and the large

quantity of ammunition were not accounted for in the guideline

calculations, the sentencing court did not plainly err by relying

on them to justify the upwardly variant sentence.

There is another dimension to the defendant's plaint

that his sentence was infected by procedural error. He suggests

that the district court weighed "community considerations" too

heavily, giving unduly short shrift to his personal circumstances.

This suggestion is not accompanied by any developed argumentation

and is, therefore, waived. See United States v. Zannino,

(1st Cir. 1990). And at any rate, the record reveals that

the district court paid due heed to the defendant's circumstances

and to the circumstances of the offense. The mere fact of the

defendant's disagreement with the district court's balancing of

the various aggravating and mitigating factors does not constitute

a valid ground for appeal. See United States v. Ruperto-Rivera,

(1st Cir. 2021).

C

The defendant's last claim of error posits that his

upwardly variant 144-month sentence on the firearms count is

substantively unreasonable. That claim is deemed to be preserved,

see Holguin-Hernandez v. United States,

(2020),

so our review is for abuse of discretion, see United States v.

Bruno-Campos,

(1st Cir. 2020). We discern none.

- 9 - "In the sentencing context, 'reasonableness is a protean

concept.'" United States v. Clogston,

(1st Cir.

2011) (quoting United States v. Martin,

(1st Cir.

2008)). In any given case, "there is not a single reasonable

sentence but, rather, a range of reasonable sentences." Martin,

. When faced with a complaint of substantive

unreasonableness, our role is "to determine whether the

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

States v. Rivera-Morales,

(1st Cir. 2020). In this

endeavor, "we cannot substitute our judgment of the appropriate

sentence for that of the sentencing court; to the contrary, we

must accord significant deference to the court's informed

determination that the section 3553(a) factors justify the

sentence imposed."

"[T]he hallmarks of a substantively reasonable sentence

are a plausible sentencing rationale and a defensible result."

United States v. Rodríguez-Cruz,

(1st Cir. 2021).

This remains true even where, as here, the sentence is an upwardly

variant one. See Rivera-Morales,

.

In this case, the sentencing court lucidly articulated

its sentencing rationale. The court addressed the defendant's

age, dependents, education level, personal habits, prior

employment, lack of a criminal record, and kindred considerations.

It described the firearms and ammunition found in the defendant's

- 10 - possession, including the two machineguns. The court noted that

"[s]hort of bombs, missiles, and biochemical agents, [it] c[ould]

conceive of few weapons that are more dangerous than a machine

gun." Weighing all the pertinent facts and circumstances, the

court determined that a 144-month prison sentence was appropriate.

We find this rationale plausible.3

So, too, the challenged sentence achieves a defensible

result. The offense of conviction was serious: the defendant

possessed seven firearms — two of which were machineguns — and

1,616 rounds of ammunition. This armamentarium was made all the

more sinister by the defendant's simultaneous possession of a

significant inventory of drugs. Given the gravity of the offense

and the extent of the firepower that the defendant had assembled,

we cannot say that a 144-month term of imprisonment represented an

indefensible result.

To say more would be supererogatory. The firearms

sentence, though upwardly variant, was within the "broad universe"

of reasonable sentences.

It follows that the defendant's

claim of substantive unreasonableness goes begging.

3 We recently explained that "an adequate explanation for an upward variance and a plausible rationale for that variance are almost always two sides of the same coin." United States v. Valle- Colón,

(1st Cir. 2021). This is such a case.

- 11 - III

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

the judgment of the district court is

Affirmed.

- 12 -