United States Court of Appeals For the First Circuit

No. 18-2155

UNITED STATES OF AMERICA,

Appellee,

v.

JOSHUA GONZÁLEZ-ANDINO,

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.

German A. Rieckehoff 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.

January 26, 2023 HOWARD, Circuit Judge. Joshua González-Andino

challenges the district court's imposition of a 78-month term of

imprisonment after he pleaded guilty to possession with intent to

distribute marijuana, in violation of

(a)(1), and

possession of firearms in furtherance of a drug trafficking crime,

in violation of

(c). We affirm the sentence,

finding that González failed to preserve the arguments he presents

on appeal and that the district court committed no plain sentencing

error.

I.

We briefly summarize the factual background and

procedural history of González's case. "Because [González

pleaded] guilty, we draw the relevant facts from the change-of-

plea colloquy, the unchallenged portions of the Presentence

Investigation Report ('PSR'), and the sentencing hearing

transcript." United States v. Díaz-Rivera,

(1st

Cir. 2020). Puerto Rico police officers arrested González and

three other individuals in an apartment at a public housing complex

in Manatí after they found multiple types of drugs, guns,

ammunition, paraphernalia, and cash while executing a search

warrant. A federal grand jury indicted the codefendants on four

counts of possession with intent to distribute controlled

substances and one count of possession of firearms in furtherance

of a drug trafficking crime. As noted above, González later

- 2 - pleaded guilty to two of the five counts. Most relevantly to this

appeal, the plea agreement that González reached with the

government stipulated the sentence that each party would propose

to the district court. For the firearm possession in furtherance

of drug trafficking count, González and the government agreed to

recommend the statutory minimum sentence of 60 months of

imprisonment. For the possession with intent to distribute count,

González and the government agreed that they would separately

recommend sentences of zero and six months of imprisonment,

respectively. González also agreed to waive his appeal rights if

the district court sentenced him to no more than a total of 66

months of imprisonment for both counts.

The crux of this appeal lies in the discrepancy between

the drug quantities specified in the plea agreement and the PSR.

In his plea agreement, González acknowledged that he possessed

with the intent to distribute 87.23 grams of marijuana. However,

the PSR calculated his Sentencing Guidelines range based on a

converted quantity of 39.2 kilograms of marijuana, which was the

equivalent of all the various drugs seized from the apartment in

which González and his three codefendants were arrested. The

district court adopted the PSR's drug quantity in sentencing

González to a total of 78 months of imprisonment, including 18

months for the drug possession count. While this sentence fell

within the Guidelines range calculated in the PSR, it exceeded the

- 3 - sentencing cap provided in the plea agreement. Thus, the appeal-

waiver provision did not vest, and González's petition to us

followed.

II.

González argues that the sentence imposed by the

district court was procedurally unreasonable, and that the court

erred by (1) failing to explicitly tie his conduct to the amount

of drugs cited in the PSR and (2) relying on the PSR's drug quantity

figure when this figure was not supported by the evidence. But he

advanced neither of these arguments with sufficient particularity

before the district court so as to preserve them. It is well-

settled in this court that "[t]o preserve a claim of error for

appellate review, an objection must be sufficiently specific to

call the district court's attention to the asserted error." United

States v. Soto-Soto,

, 448 n.1 (1st Cir. 2017).

"[L]egal arguments cannot be interchanged at will" on appeal,

United States v. Ríos-Hernández,

(1st Cir. 2011)

(citing United States v. Lilly,

, 17-18 & n.6 (1st Cir.

1994)), and an objection that "d[oes] not allude to, or even

mention, the specific claim of error" that the defendant proffers

on appeal will not suffice, United States v. Matos-de-Jesús,

(1st Cir. 2017).

González did not present to the district court the

arguments that he now advances before us. He did not object to

- 4 - the PSR's findings, despite having had two opportunities to do so.

Cf. United States v. Orsini,

(1st Cir. 2018)

("[A] defendant who 'accepts the probation department's

configuration of the sentencing record . . . can scarcely be heard

to complain when the sentencing court uses those facts in making

its findings.'" (quoting United States v. Turbides-Leonardo,

(1st Cir. 2006))). And, while he did tell the district

court immediately after sentencing that he "must object to the

inclusion of the drugs," since he "only pled to the marijuana found

in the apartment," we are hard-pressed to conclude that this

general statement alone alerted the district court to specific

arguments about the PSR drug quantity's ostensible evidentiary

infirmity or that the court should have made an individualized

finding linking the drug amount to González's conduct.1 We have

routinely deemed arguments like González's forfeited when the

underlying record evinced only generalized objections or those

made on notably different bases than the defendant's subsequent

appellate arguments. See, e.g., Soto-Soto,

, 448

1 During sentencing, the district court incorrectly stated that González was "convicted of possession of at least 20 but less than 40 kilograms of marijuana, after the other controlled substances were converted into marijuana for sentencing purposes." González's objection that he "only pled to the marijuana found in the apartment" would have preserved a procedural challenge based upon the court's misstatement. But González does not argue on appeal that the district court erroneously relied upon the higher drug quantity due to a mistaken belief that he had pleaded to that quantity.

- 5 - n.1 (noting that the defendant's argument that his sentence was

"procedurally . . . unreasonable" did not preserve his argument on

appeal that the district court committed procedural error when it

allegedly mischaracterized the case history); Ríos-Hernández,

(concluding that the defendant's argument to the

district court was "sufficiently different" from his appellate

argument so as to be forfeited). González does not make any

attempt in his principal brief to persuade us that we should treat

his objections differently, and he did not file a reply brief in

response to the government's forfeiture argument.

III.

We review unpreserved arguments for plain error. "[T]he

plain error hurdle is high." United States v. Merced-García,

(1st Cir. 2022) (quoting United States v. Hunnewell,

(1st Cir. 1989)). Under this standard, González

must show "(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." Id. at 79-80 (alteration in

original) (quoting United States v. Duarte,

(1st

Cir. 2001)).

As an initial matter, González waived his arguments on

appeal by "not even attempt[ing] to meet his four-part burden for

forfeited claims" under the plain-error standard. United States

- 6 - v. Pabon,

(1st Cir. 2016). The district court, in

any event, committed no clear or obvious error with respect to

either one of González's claims. Both of his claims implicate the

district court's application of our case law interpreting

"relevant conduct" under U.S.S.G. §1B1.3 in the context of drug-

quantity attributions; or, more specifically, the contention that

"[i]f the sentencing court finds by a preponderance of the evidence

that a defendant engaged in the 'same course of conduct or common

scheme or plan' involving additional drugs, it can attribute the

amount of those drugs involved to the defendant." United States

v. McDonald,

(1st Cir. 2015) (citation

omitted) (quoting U.S.S.G. §1B1.3(a)(2)). A district court's

attribution of drugs to a defendant under §1B1.3 "is entitled to

considerable deference." Id. (quoting United States v. Wood,

(1st Cir. 1991)).

A.

González claims that the evidence does not support a

common scheme such that the district court could properly attribute

the larger PSR drug quantity to him because "[t]here was no

evidence that he was part of a larger drug enterprise" and "[t]here

was no evidence that the drugs were his or that they belonged to

anyone with whom he was in business." The plain-error bar for

challenging a district court's factual findings is especially

high: "[I]f an error pressed by the appellant turns on 'a factual

- 7 - finding [he] neglected to ask the district court to make, the error

cannot be clear or obvious unless' he shows that 'the desired

factual finding is the only one rationally supported by the record

below.'" United States v. Takesian,

(1st Cir.

2019) (alterations in original) (quoting United States v. Olivier-

Diaz,

(1st Cir. 1993)).

That is far from being the case here, since González's

arguments are belied by his own statements to the district court.

In arguing that the district court should factor in his drug

addiction at sentencing, he stated that "[t]he record clearly

reflects that the apartment in which the search warrant was

executed was being used as a stash house" and -- by way of

explaining his presence in the apartment -- that "[g]oing to the

apartment would probably allow him to consume drugs if these were

available, in exchange for him acting as a lookout or guard while

the occupants rested in the adjacent rooms." It is difficult to

reconcile González's argument to us that there was no evidence

suggesting that he was involved in a larger criminal enterprise

with his explicit statement to the district court that he was

likely in the apartment in order to perform services for exactly

such an enterprise.

The existence of a common scheme is further underscored

by the fact that, according to the PSR -- to which, as noted above,

González did not object -- local police located two loaded guns,

- 8 - a brown bag filled with three types of drugs and associated

paraphernalia, and $820 in cash in the room in which police found

González. The police search of other rooms in the same apartment

yielded more drugs, paraphernalia, cash, and ammunition. All of

these items suggest the existence of a larger drug trafficking

enterprise. Cf. United States v. Marin,

(1st Cir.

2008) (noting that a weapon, ammunition, drugs, paraphernalia, and

cash all being stored in the same house was indicative of broader

drug trafficking activity). We therefore find that the district

court's imputation of all the drugs found in the apartment to

González did not constitute clear or obvious error.

B.

González also contends that the district court erred in

not making a specific finding at sentencing that linked the total

amount of drugs found in the apartment to either his personal

conduct or conduct that was foreseeable to him. But González

overlooks the fact that the court mentioned that he was "arrested

along with three other individuals" shortly before it described

the items found in González's vicinity, which clearly implies that

the court factored in both the individual items police found in

the apartment and the general context of his arrest in attributing

to him the total amount seized. While "it would have been a better

practice for the court to state its [drug-quantity attribution]

finding explicitly," our precedent does not mandate a more

- 9 - detailed, sua sponte statement of reasoning than what the district

court proffered in the context of a PSR replete with unobjected-

to details of a common enterprise. United States v. Millán-

Machuca,

, 30-31, 31 n.13 (1st Cir. 2021) (upholding a

district court's drug-attribution finding on plain-error review

when "[t]he district court did not state [its drug-attribution

finding] explicitly" but there was ample support for it in the

record and the "finding [was] unmistakable in the court's

explanation of its sentencing decision"); cf. United States v.

Díaz-Lugo,

(1st Cir. 2020) ("[W]here the record

permits a reviewing court to identify both a discrete aspect of an

offender's conduct and a connection between that behavior and the

aims of sentencing, the sentence is sufficiently explained to pass

muster." (quoting United States v. Sepúlveda-Hernández,

(1st Cir. 2016))).

González's case is also markedly different from those in

which we have found that a district court proffered an inadequate

explanation for its drug-quantity attribution: The court did more

than simply recite the "threshold quantities" under the Sentencing

Guidelines without further elaboration, United States v. Vázquez-

Larrauri,

(1st Cir. 2015), and it did not rely

on a years-long, conspiracy-wide amount untethered from González's

conduct, see United States v. González-Vélez,

(1st Cir. 2006), given that the PSR explicitly linked the amount

- 10 - to the quantity found in the apartment in which González was

arrested. We thus discern no clear or obvious error with respect

to the district court's drug-attribution finding.

Affirmed.

- 11 -