Not for Publication in West's Federal Reporter

United States Court of Appeals For the First Circuit

No.18-2241

UNITED STATES OF AMERICA,

Appellee,

v.

MANUEL VEGA-MONSERRATE,

Defendant-Appellant.

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

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

Before

Kayatta, Howard, and Gelpí, Circuit Judges.

José Luis Novas-Debién for appellant. Julia M. Meconiates, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, were on brief, for appellee.

December 5, 2022 KAYATTA, Circuit Judge. Manuel Vega-Monserrate appeals

from his 81-month sentence for drug and firearm charges, arguing

that his sentence was both procedurally and substantively

unreasonable. For the foregoing reasons, we affirm the district

court.

Vega-Monserrate pled guilty to two counts in the

District Court for the District of Puerto Rico: the first for

possession, with the intent to distribute, of marijuana in

violation of

(a)(1), (b)(1)(c); and the second for

possession of a firearm in furtherance of a drug trafficking crime,

in violation of

(c)(1)(A). Relevant to this appeal

is the sentence for the drug count.

In the plea agreement, the parties proposed a guideline

sentencing range for the drug count of zero to six months based on

the drug quantity that Vega-Monserrate admitted to possessing with

the intent to distribute. Subsequently, the probation office

issued a presentence report in which it calculated a guideline

sentencing range of twelve to eighteen months. In calculating

this higher range, the probation office took into account

additional drugs found in the apartment in which Vega-Monserrate

was arrested. See U.S.S.G. § 1B1.3; United States v. McDonald,

(1st Cir. 2015). Many of these drugs were

mentioned in the affidavit filed with the initial criminal

- 2 - complaint; the presentence report also included a quantity of

powder cocaine that was not mentioned in the initial affidavit.

Vega-Monserrate did not offer any objection to the

calculations in the presentence report. To the contrary, in his

sentencing memorandum he asked the district court to consider the

presentence report, along with the sentencing factors under

(a) and personal background factors. The memorandum

went on to ask for a sentence based on the parties' agreed-upon

range set forth in the plea agreement. At sentencing, Vega-

Monserrate again offered no challenges to the attribution of drugs

or the calculation of the sentencing range made by probation.

The district court decided to reject the parties'

proposed sentences. It instead sentenced Vega-Monserrate to a

within-guidelines sentence of fifteen months, smack in the middle

of the range calculated by the probation office. Vega-Monserrate

then asked for reconsideration, arguing that more weight should be

given to the plea agreement, even though it was not binding. He

also challenged -- for the first time -- the fact that the

probation office attributed to him (as relevant conduct) drugs

beyond those that he admitted to possessing in his plea agreement.

The district court denied reconsideration.

Now on appeal, Vega-Monserrate advances yet another

challenge to the calculation of the drug quantity in the

presentence report, describing the calculation as "incongruous."

- 3 - By that he means that some of the cocaine included in the

presentence report's calculation of drug quantity should not have

been included because it was not mentioned in the affidavit upon

which the criminal complaint was based. Vega-Monserrate contends

that this incongruity rendered the calculation of the guideline

sentencing range unreliable, and the sentence both procedurally

and substantively flawed.

Whether Vega-Monserrate waived his present argument by

not objecting to the presentence report, see, e.g., United States

v. Turbides-Leonardo,

(1st Cir. 2006), by not

objecting at sentencing to the inclusion of the specific drugs he

now challenges, see, e.g., United States v. Lilly,

, 17–

18 (1st Cir. 1994), or by failing to develop an argument that the

district court's decision constituted plain error, see, e.g.,

United States v. Pabon,

(1st Cir. 2016), we need

not decide. Even if we were to consider the belated challenge and

conclude that inclusion of some of the cocaine was error (a finding

we do not make), the government points out that subtracting those

drugs does not alter the guideline sentencing range at all. Vega-

Monserrate offers no challenge to that calculation. So any error

-- if there was error -- was harmless. Finally, even on abuse-

of-discretion review, Vega-Monserrate offers no basis for finding

his within-guideline sentence substantively flawed.

- 4 - For the foregoing reasons, the judgment of the district

court is affirmed.

- 5 -