United States Court of Appeals For the First Circuit

No. 21-1932

UNITED STATES,

Appellee,

v.

ALEX MANUEL LÓPEZ-FELICIE,

Defendant, Appellant.

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

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

Before

Montecalvo, Hamilton, and Rikelman, Circuit Judges.

Robert Millán for appellant.

Julian N. Radzinschi, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Edwin Giovannie Mercado, Assistant United States Attorney, were on brief, for appellee.

July 22, 2024

* Of the Seventh Circuit, sitting by designation. HAMILTON, Circuit Judge. Defendant-appellant Alex

Manuel López-Felicie ("López") pled guilty to bank larceny. He

appeals his above-guideline sentence. His guideline range was 12

to 18 months in prison. The court sentenced him to 60 months,

explaining that the guideline range did not sufficiently reflect

the seriousness of López's crime. López argues that the sentence

was procedurally and substantively unreasonable. Finding no

procedural or substantive error, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Theft, Chase, and Shoot-out

Because López pled guilty, we draw these facts from the change

of plea colloquy, the transcript of the sentencing hearing, and

the undisputed portions of the revised Presentence Investigation

Report. See United States v. Walker,

, 177 n.1 (1st

Cir. 2023) (quoting United States v. Vargas-Martinez,

,

95 n.1 (1st Cir. 2021). In the early morning hours of January 9,

2021, López and two other men drove a pickup truck to a closed

pharmacy. They broke into the pharmacy and attached a chain to an

automatic teller machine (ATM) in the store. Hooking the other

end of the chain to the pickup truck, the thieves managed to pull

the ATM from its moorings. They loaded it into the bed of the

truck and drove off into the night. The ATM held approximately

$21,580 in cash.

- 2 - The thieves then suffered a stroke of bad luck. Three

police officers in an unmarked car spotted the pickup truck

carrying an ATM in the dead of night. Not surprisingly, the

officers began to follow it, eventually into a residential

neighborhood. At that point, López and the other thieves realized

the unmarked vehicle was following them. Gunfire erupted. We do

not know who fired first. López denies having fired a gun, but he

agrees that at least one of his co-defendants fired at the police

officers in a residential area.

López and the other thieves then abandoned the pickup

truck and fled on foot into a wooded area. Other police officers

arrived and searched the area until they found and arrested López.

During the exchange of gunfire, López had been shot in the leg.

He required emergency surgery. López did not have a firearm with

him when he was arrested, but officers found a blood-covered

firearm nearby. DNA testing showed that the blood on the firearm

was López's blood.

B. Pre-Sentencing Proceedings

López and the other thieves were indicted on one federal

charge of bank larceny under

(b). The charge was

based on their removal of the ATM with intent to steal the $21,580

it contained. The cash belonged to a U.S. bank whose deposits

were insured by the Federal Deposit Insurance Corporation. See

(b) and (f).

- 3 - López pled guilty to bank larceny pursuant to a plea

agreement. The parties agreed to guideline calculations that the

probation officer and district judge later accepted. The base

offense level for the bank larceny charge was 6 under U.S.S.G.

§ 2B1.1(a)(2). Three aggravating factors added 10 more levels: 4

levels for a loss amount exceeding $15,000 under § 2B1.1(b)(1)(C);

2 levels for possession of a dangerous weapon under § 2B1.1(b)(16),

2 more levels under the same provision because the resulting

offense level was less than 14; and 2 more levels for reckless

endangerment during flight under § 3C1.2, for an adjusted offense

level of 16. The parties also agreed to a 3-level reduction for

López's acceptance of responsibility under § 3E1.1, for a total

offense level of 13. The plea agreement left open the question of

criminal history, but everyone agrees that López fell within

criminal history category I, for a guideline range of 12 to 18

months in prison. The government and López both agreed to

recommend a prison term within the applicable guideline range at

the total offense level of 13.

López filed a sentencing memorandum that requested a

within-guideline sentence. López's memorandum described him as a

"hardworking individual" who had made a "terrible mistake," and

the memorandum explained the impact of his crime on his ability to

care for his family, including his grandparents, wife, and young

child. He raised one factual objection to the probation office's

- 4 - Presentence Investigation Report. López claimed "that he was

unaware that police officers were following him and his

co-defendants" as they drove away from the pharmacy in the pickup

truck, but he otherwise complimented the PSR as "thorough and well

drafted."

C. Sentencing

At the sentencing hearing, López requested a sentence

within the guideline range, 12 to 18 months. He said again that

he had "committed a terrible, terrible mistake," but that he had

an extended network of community support. The government stood by

the plea agreement and requested a sentence of 18 months, the high

end of the guideline range. In explaining the "totality of the

circumstances" surrounding the offense, the government highlighted

that the stolen ATM was loaded with more than $20,000 in cash, as

well as the defendants' flight and the exchange of gunfire. The

government noted that recent DNA tests had confirmed that López's

blood was on the recovered firearm.

López then argued that the fact that his blood was on

the gun did not prove that he "had a firearm or fired at anyone,"

given that he was bleeding profusely from a gunshot wound during

the flight. López also argued that he and his co-defendants had

not known the people following them were police officers because

the police vehicle was unmarked. López expressly declined,

however, to dispute the facts that at least one of the thieves

- 5 - fired on the unmarked police car and that López had constructive

possession of the firearm that tested positive for his blood.

In López's allocution, he apologized to his family for

the financial and emotional hardship his crime had caused his wife,

grandparents, and child. He expressed remorse and said he had

become a "more mature man" who had been "rehabilitated" since

committing the bank larceny.

After López's allocution, the district court agreed with

the guideline calculations that produced a range of 12 to 18 months

in prison, based on a total offense level of 13 and a criminal

history category of I. The court then noted that it had

"considered the other sentencing factors set forth in Title

(a), counsel's arguments today,

the sentencing memo filed on defendant's behalf, the government's

argument, and the letters received by the Court from Mr. López's

partner and from a municipal legislator." The court also noted

López's age, high school education, employment, and lack of

physical and mental health issues. The court acknowledged that

López had no reported history of illegal use of controlled

substances and that the bank larceny charge was López's first known

arrest and conviction.

The court then said: "While the probation officer has

correctly calculated the guidelines, the Court finds that the

guideline sentencing range substantially understates the

- 6 - seriousness of this offense." Reading from an application note in

the larceny and fraud Guideline, the court said: "There may be

cases in which the offense level determined under [this] guideline

substantially understates the seriousness of the offense. . . .

In such cases, an upward departure may be warranted." App. 35–36

(quoting U.S.S.G. § 2B1.1 cmt. n.21(A)). The district court

believed López's larceny was such a case, explaining:

The defendants exposed law enforcement officers and the members of the general public to serious risk of death or bodily harm. Two firearms were discharged while . . . defendant and his co-defendants were fleeing from the police, in an effort to accomplish their criminal venture and to kill or maim the police officers. There is no other reason to shoot at them. . . .

The guideline sentencing range in the presentence investigation report does not account for the substantial risk of physical harm or death to others caused by the discharge of two firearms on a public street.

The district court acknowledged that two relevant

enhancements had already been applied in calculating López's total

offense level: a 2-level enhancement for reckless endangerment

during flight under § 3C1.2, and a 4-level enhancement because the

offense involved possession of a dangerous weapon, specifically,

a firearm, under § 2B1.1(b)(16).

The court explained further why it thought the guideline

calculation did not sufficiently reflect the seriousness of the

crime. "Neither enhancement contemplates the discharge of a

- 7 - firearm on a public street. Indeed, driving at a speed higher

than the speed limit during flight is sufficient to impose the

enhancements." Quoting an application note for the reckless

endangerment enhancement, the court said that if "the conduct posed

a substantial risk of death or bodily [injury] to more than one

person, an upward departure may be warranted." App. 37 (quoting

§ 3C1.2 cmt. n.6).

The court also explained that the 4-level enhancement

for the use of a firearm did not "specifically contemplate the

risk caused by the reckless, irresponsible and criminal discharge

of a firearm, specifically aimed at the police on a public street."

On this point, the court quoted the guideline policy statement on

upward departures for the use or possession of weapons and

dangerous instrumentalities: "The discharge of a firearm might

warrant a substantial sentence increase." App. 37 (quoting

§ 5K2.6). The judge continued: "Because the defendants, including

Mr. López, committed a crime involving the discharge of firearms,

and a substantial risk of death or serious bodily injury to more

than one person, the police officers and others who could have

been transiting the street, an upward variance is warranted."

Concluding that "a sentence above the guideline range

reflects the seriousness of the offense, promotes respect for the

law, protects the public from further crimes by Mr. López, and

addresses the issues of deterrence and punishment," the court

- 8 - sentenced López to 60 months in prison, followed by three years of

supervised release.

After the court announced the sentence, López objected,

arguing that "there is no evidence whatsoever that Mr. López had

any knowledge that police officers were following them; that he

was fleeing from the police officers. There is no evidence that

he fired a gun at any[ ]time . . . [a]nd there is no evidence of

who actually fired first." The court noted the objection and

denied the request to reconsider the sentence.

II. DISCUSSION

On appeal, López argues that his above-guideline

sentence of 60 months was procedurally unreasonable because

(a) the court did not sufficiently justify its upward variance

from a guideline range that already included enhancements for

reckless endangerment and possession of a firearm, and (b) the

record did not support a finding that he had possessed or fired a

weapon. López also argues (c) that his sentence is both

procedurally and substantively unreasonable because the court

failed to consider his remorse and his family and economic

circumstances. After setting out the standard of review, we

address these three arguments in order.

We review preserved challenges to the reasonableness of

a sentence under "a multifaceted abuse-of-discretion standard."

United States v. Sierra-Jiménez,

(1st Cir. 2024)

- 9 - (quoting United States v. Mendoza-Maisonet,

(1st

Cir. 2020)); see also United States v. Maisonet-González,

(1st Cir. 2015) (abuse-of-discretion standard applies to

both substantive and procedural reasonableness challenges). Under

this standard, "we review the sentencing court's findings of fact

for clear error and questions of law (including the court's

interpretation and application of the sentencing guidelines) de

novo." United States v. Carrasquillo-Vilches,

(1st Cir. 2022) (quoting United States v. Rivera-Morales,

(1st Cir. 2020)).

López suggested in his opening brief that this standard

applied, arguing that he preserved his claims of procedural and

substantive error. We disagree. At his sentencing hearing, his

only objections were to three of the district court's factual

conclusions: (1) that López knew he was fleeing from police

officers, (2) that López personally fired a gun, and (3) that López

and the other thieves were the first to shoot in the exchange of

gunfire with officers. The only overlap between these objections

and López's arguments on appeal is the latter half of his second

argument on appeal, which challenges what he says was the district

court's factual finding that he personally fired a gun.

López's preserved objection on this point does not help

him on appeal because the district court never actually made the

factual finding he says he is challenging. The district court

- 10 - "assum[ed]" that López did not personally possess the firearm, let

alone fire it. App. 30. Instead, the district court found only

that López had "constructive possession" of the firearm.

López did not dispute the court's finding of constructive

possession.

López thus failed to preserve any challenge to

the district court's factual finding that he constructively

possessed a firearm in connection with the offense.

Because López's arguments challenging the procedural and

substantive reasonableness of his sentence were not preserved in

the district court, we review them on appeal only for plain error.

See United States v. Melendez-Hiraldo,

(1st Cir.

2023). And despite arguments to the contrary in his briefs, López

correctly conceded in oral argument that plain-error review

applies, at least to his challenge of the district court's

explanation for varying upward. "To succeed under plain error

review, an appellant must show (1) that an error occurred (2) which

was clear or obvious and which not only (3) affected the

[appellant's] substantial rights, but also (4) seriously impaired

the fairness, integrity, or public reputation of judicial

proceedings."

(alteration in original) (internal quotation

marks omitted) (quoting United States v. Montero-Montero,

(1st Cir. 2016)); see generally United States v. Olano,

, 732–35 (1993) (discussing plain-error standard). In

this case, because López "fail[ed] to even mention plain error" in

- 11 - his briefs, "let alone argue for its application here," he

"definitively waives these arguments." United States v.

Morales-Veléz,

(1st Cir. 2024) (quoting United

States v. Benjamin-Hernandez,

(1st Cir. 2022)).

Even if we chose to overlook López's waiver and apply

plain-error review, his arguments would fail. We see no error in

the district court's sentencing decision, let alone any plain

error. A sentencing court is required by statute to "state in

open court the reasons for its imposition of the particular

sentence."

(c). The court's explanation for a

sentence must demonstrate that it "conduct[ed] an 'individualized

assessment' of the § 3553(a) factors . . . based on the facts

presented in a particular sentencing case." United States v.

Colón-Cordero,

(1st Cir. 2024) (quoting Gall v.

United States,

(2007)). "When a court imposes a

sentence above the guidelines sentencing range, 'it must justify

the upward variance.'"

(quoting United States v. Del

Valle-Rodríguez,

(1st Cir. 2014)); see Rita v.

United States,

(2007) ("Where the judge imposes

a sentence outside the Guidelines, the judge will explain why he

has done so.").

To justify an upward variance, a court must explain why

it deems the defendant's case different from the norm and/or why

it disagrees with the applicable advice from the Guidelines. See

- 12 - Kimbrough v. United States,

, 110–11 (2007); United

States v. Reyes-Correa,

(1st Cir. 2023). The more

a court deviates from the guideline range, "the more compelling

the sentencing court's justification must be."

(quoting Del

Valle-Rodríguez,

). Still, "brevity is not to be

confused with inattention." United States v. Dávila-González,

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

Turbides-Leonardo,

(1st Cir. 2006)).

First, López argues that the district court failed to

justify the upward variance where two of the enhancements included

in López's guideline calculation already accounted for reckless

endangerment during flight and use of a firearm. It is true that,

"[a]s a general matter, a sentencing court may not double-count

factors in justifying an upwardly variant sentence." United States

v. Valle-Colón,

(1st Cir. 2021). "We repeatedly

have held, however, 'that a sentencing court may rely on a factor

that is already included in the calculation of the [guideline

sentencing range] to impose an upward . . . variance 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.'"

(second and

third alterations in original) (quoting United States v. Bruno-

Campos,

(1st Cir. 2020)).

- 13 - That is precisely what Judge Besosa did here. The judge

explained in detail why the enhancements for reckless endangerment

during flight and use of a firearm failed to account for the

seriousness of López's offense. Citing the Guidelines, he

explained correctly: "Neither enhancement contemplates the

discharge of a firearm on a public street. Indeed, driving at a

speed higher than the speed limit during flight is sufficient to

impose the enhancements." The reckless endangerment enhancement

can apply if just one officer's life is endangered. The two-level

adjustment does not account for risk to many people in a public

setting. See U.S.S.G. § 3C1.2 cmt. n.6 (explaining if "the conduct

posed a substantial risk of death or bodily injury to more than

one person, an upward departure may be warranted"). Because the

shootout on a residential street risked the lives of many people,

an upward departure over and above the enhancement was clearly

permissible, even encouraged, under the (advisory) Guidelines.

Further, the court explained, the enhancement for

possession of a firearm does not "specifically contemplate the

risk caused by the reckless, irresponsible and criminal discharge

of a firearm, specifically aimed at the police on a public street."

The court was correct. Mere possession of a dangerous weapon is

sufficient to impose this enhancement, and the judge quoted the

relevant guideline policy statement encouraging upward departures

in cases like this one: "The discharge of a firearm might warrant

- 14 - a substantial sentence increase." App. 37 (quoting U.S.S.G.

§ 5K2.6). The court thus did not unreasonably base its sentencing

decision on a factor that was already accounted for in the

Guidelines. The court also explained sufficiently "the reasons

that this particular defendant's situation is different from the

ordinary situation covered by the guidelines calculation." See

Valle-Colón,

(quoting Bruno-Campos,

). There was no error, let alone a plain error, in the district

court's thorough explanation of its choice to vary upward. The

fact that the Guidelines in question expressly encourage upward

departures in cases like this one reinforces that conclusion.

Second, López argues that the district court's sentence

was procedurally unreasonable because it was based on several

supposed factual findings he contends are not supported by the

record: namely, that López had possessed or fired a weapon. He

also challenges the district court's comment that his intention

was "to kill or maim the police officers." Even if López had

adequately preserved his challenge to these findings, this court's

review of the district court's factual findings would be only for

clear error. See Carrasquillo-Vilches,

. There was

no error in the district court's factual findings supporting the

enhancements for reckless endangerment and use of a firearm.

What the district court actually found was that López

had constructive possession of the firearm recovered from the

- 15 - woods, that López and/or his co-defendants shot at police officers

during their flight, and that their intent was "to accomplish their

criminal venture and to kill or maim the police officers." All

three factual findings are supported by the record before the

district court at sentencing.

The district court did not find that López or his co-

defendants knew they were shooting at police officers, nor did it

need to. López did not dispute constructive possession, and in

any event, the court could reasonably infer constructive

possession from the fact that the recovered firearm was covered in

López's blood. López disputed that he and his fellow thieves were

the first to fire in the shootout, but he never disputed the more

salient point, that they fired at all. Finally, we see nothing

unreasonable about the district court's inference from the other

facts that the thieves had "no other reason to shoot at" the

officers absent an intent to "accomplish their criminal venture

and to kill or maim" the individuals at whom they shot. López has

not shown clear error in any of the challenged factual findings.

Third and finally, López argues that the district court

erred both procedurally and substantively by failing to consider

his individual characteristics, including his expressions of

remorse and his family and economic situation. The record refutes

his assertions. The district court said it had considered the

relevant factors under

(a), a statement that "is

- 16 - entitled to significant weight." United States v.

Santiago-Rivera,

(1st Cir. 2014). The first

factor includes "the history and characteristics of the

defendant," § 3553(a)(1), and the court noted on the record López's

age and the fact that he has one child, along with his educational

and work histories. The court also noted that the ATM heist was

López's first known arrest and conviction. The court also said it

had considered López's sentencing memorandum and the letters sent

on his behalf. The court did not give those factors the weight

that López believes it should have, but that is neither unusual

nor a sign that the sentence was unreasonable. There was no error,

procedural or substantive, in the district court's consideration

of López's individual characteristics.

III. CONCLUSION

López failed to preserve the arguments he raises on

appeal through objections in the district court and did not even

address the need for plain-error review. His procedural and

substantive claims were thus waived for purposes of this appeal.

Even if he had preserved his arguments, they would fail. The

district court sufficiently explained its decision to impose an

above-guideline sentence of 60 months, made reasonable findings of

fact related to López's constructive possession of and

responsibility for the dangerous use of a firearm, and adequately

- 17 - considered López's individual characteristics. For all these

reasons, we AFFIRM the district court's judgment.

- 18 -