United States Court of Appeals For the First Circuit

No. 22-1642

UNITED STATES,

Appellee,

v.

JOHN DERICK ROSARIO-MERCED,

Defendant, Appellant.

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

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

Before

Barron, Chief Judge, Hamilton,* and Thompson, Circuit Judges.

José B. Vélez Goveo, with whom Vélez & Vélez Law Office was on brief, for appellant. Jeniffer Vélez Pérez, Assistant United States Attorney, 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.

July 25, 2024

* Of the Seventh Circuit, sitting by designation. HAMILTON, Circuit Judge. Defendant-Appellant John

Derick Rosario-Merced ("Rosario") was convicted of possessing

crack cocaine with intent to distribute in violation of

(a)(1) and possessing a firearm in furtherance of a drug

trafficking crime in violation of

(c)(1)(A). The

Sentencing Guidelines recommended a sentence of 15 to 21 months in

prison for the drug charge and a consecutive 60 months in prison

for the firearm count. The district court opted to vary upward

from the guideline range and sentenced Rosario to 96 months on the

firearm count and 18 months on the drug count, for a total prison

sentence of 114 months, which was 33 months above the high end of

the guideline range. On appeal, Rosario contends that this upward

variance was procedurally and substantively unreasonable.

We affirm because the district court gave sufficient

reasons for the upward variance, including the quantity of

ammunition and magazines Rosario possessed and the judge's view of

the need for deterrence.

I. FACTUAL AND PROCEDURAL BACKGROUND

In July 2021, police were tipped off that Ivan Javier

Gines-Negron, who had an outstanding arrest warrant, was staying

in Rosario's apartment. Several officers went to Rosario's

apartment to arrest Gines-Negron. They saw Gines-Negron standing

outside the apartment building, but when the officers approached,

- 2 - he ran away. He fled up the building's stairs and disappeared

into an apartment.

Officers chased him up the stairs and knocked on the

apartment door to demand entry. Meanwhile, Gines-Negron began

throwing guns, drugs, and ammunition out a back window. He tossed

out an FN Herstal pistol, an extra extended magazine, a total of

35 bullets, and baggies and packets of cocaine and heroin. At the

front door, the officers ordered everyone out of the apartment.

Rosario and Gines-Negron walked out and were promptly arrested.

Officers swept the apartment and found a collection of

contraband. They recovered a second firearm, a Glock semiautomatic

handgun that had been modified to shoot automatically, making it

a machinegun. In total, counting contraband found both inside and

outside the apartment, the officers recovered a total of four

magazines (three of which were high-capacity), 107 rounds of

ammunition, 10.1 grams of crack cocaine, and 1.5 grams of

fentanyl.1

A federal grand jury indicted Rosario on four offenses:

possessing a machinegun in furtherance of a drug trafficking crime

in violation of

(c)(1)(A) and 924(c)(1)(B)(ii);

1 TheSentencing Guidelines define a "large capacity magazine" as one with a capacity of fifteen or more rounds. U.S.S.G. § 5K2.17. The PSR here used the phrase "extended," but we have used "extended" and "high-capacity" interchangeably. See, e.g., United States v. Díaz-Lugo,

(1st Cir. 2020)

- 3 - possessing a firearm in furtherance of a drug trafficking crime in

violation of

(c)(1)(A); possessing crack cocaine

with intent to distribute in violation of

(a)(1);

and possessing heroin with intent to distribute in violation of

(a)(1). Rosario pled guilty to possessing a firearm

in furtherance of a drug crime and to the crack cocaine charge.

The machinegun and heroin charges were dismissed by agreement.

For possessing crack cocaine with intent to distribute,

the Sentencing Guidelines recommended 15 to 21 months in prison

based on Rosario's total offense level of 13 and criminal history

category of II. For possessing a firearm in furtherance of a drug

trafficking crime, the Sentencing Guidelines recommended the

mandatory minimum codified in

(c)(1)(A): 60 months

in prison, consecutive to any other sentence.

Rosario advocated a total sentence of 81 months in

prison, comprised of 15 months on the drug count and 66 months on

the firearm count, followed by five years of supervised release.

The government recommended a total of 102 months in prison — 18

months on the drug count and 84 months on the firearm count — also

followed by five years of supervised release.

The district court sentenced Rosario to a total of 114

months in prison (18 months on the drug count and 96 months on the

firearm count) followed by five years of supervised release. The

judge explained that he imposed the above-guideline sentence for

- 4 - two reasons. First, the judge noted the circumstances of Rosario's

offenses — that he "was in constructive possession" of two guns,

four magazines, 107 rounds of ammunition, and controlled

substances. Second, the judge found a greater need for deterrence.

Citing Puerto Rico's high rate of firearm offenses and its high

rate of murders as compared to other jurisdictions within the First

Circuit, the judge concluded that a longer sentence would better

serve deterrence goals. These factors were reiterated in the

district court's written Statement of Reasons.

II. Analysis

On appeal, Rosario argues that his sentence is

procedurally and substantively unreasonable. Though his brief

mentions his substantive reasonableness challenge only in passing,

we assume that he meant to bring both challenges, and we review

them separately. See United States v. Calderon-Zayas,

, 35–36 & n.6 (1st Cir. 2024) (analyzing an ambiguous challenge

under both procedural and substantive lenses "out of an abundance

of caution" (internal quotations omitted)).

Where a defendant challenges his sentence as both

procedurally and substantively unreasonable, we consider first the

procedural challenge and then the substantive challenge. United

States v. Ramirez-Ayala,

(1st Cir. 2024). We

conclude that the sentence was neither procedurally nor

substantively unreasonable.

- 5 - A. Procedural Reasonableness

Rosario argues that the district court made a procedural

error by failing to explain adequately the above-guideline

sentence. In Rosario's view, Puerto Rico's high murder rate does

not justify the upward variance. He argues that the guideline

range "had already taken into account" the "ordinary"

circumstances of his offenses, so that the judge's references to

other criminal activity resulted in Rosario being punished for

crimes he did not commit. Rosario did not raise this argument

before the district court, so we review this point, at best, for

plain error. Ramirez-Ayala,

. In addition, because

Rosario has not addressed the plain-error standard in his brief,

his claim is waived. See, e.g., United States v. Vázquez-Rosario,

(1st Cir. 2022) (finding appellant's claim waived

because brief failed to address applicable standard of review).

Because Rosario's claim fails on the merits in any event, however,

we address it accordingly.

Rosario's argument mischaracterizes the district court's

explanation for the upward variance. The court identified two

factors supporting it: the additional contraband that Rosario

possessed in addition to the charged firearm, and the high murder

rate in Puerto Rico. As we explain below, the district court did

not commit plain error by considering these factors together,

though we might be more skeptical if the judge had relied upon

- 6 - Puerto Rico's high murder rate alone. See United States v.

Rivera-Berríos,

, 135–37 (1st Cir. 2020) (vacating

sentence in part because district court's discussion of Puerto

Rico's crime trends was not tied to individual characteristics of

the offender or the offense of conviction).

1. Additional Contraband

Possessing additional contraband can support an upward

variance because a judge may find that the Sentencing Guidelines

do not account sufficiently for all the guns and ammunition

involved in an offense. Cf. United States v. Díaz-Lugo,

(1st Cir. 2020) (affirming above-guideline sentence where

applicable guideline, U.S.S.G. § 2K2.1(a)(4)(B), accounted for

only one of two guns possessed by defendant and none of defendant's

four high-capacity magazines). For example, the 60-month

mandatory minimum in this case would have applied even if the

charged firearm had not been loaded and Rosario had not possessed

any ammunition or magazines. The simple fact that he possessed a

firearm "during and in relation to any . . . drug trafficking

crime" sufficed to require a 60-month consecutive prison term for

the firearm charge.

(c)(1)(A); U.S.S.G.

§ 2K2.4(b). In this case, the district court explained that the

applicable guideline provisions did not account adequately for the

additional firearm, the substantial quantity of ammunition, and

the extra magazines.

- 7 - In similar cases, we have explained that additional

contraband can justify an above-guideline sentence if the

defendant possessed more ammunition or magazines than would be

expected in a typical unlawful possession case. See, e.g., United

States v. Morales-Vélez,

, 344–45 (1st Cir. 2024).

Possessing a gun, even illegally, generally entails possessing

bullets and magazines too, so in a run-of-the-mill case for

unlawful gun possession, a defendant could reasonably be expected

to have at least some ammunition and magazines in his possession

as well. But the facts of a case may be deemed atypical, and

therefore support an above-guideline sentence, when a defendant

possesses significantly more ammunition or magazines than in a

typical case.

. These are not bright lines, of course,

but the Sentencing Guidelines are "effectively advisory," not

binding. Beckles v. United States, 580 U.S 256, 265 (2017)

(Sentencing Guidelines not subject to void-for-vagueness

challenge). Accordingly, when a drug dealer possesses a

substantial cache of illegal ammunition and high-capacity

magazines alongside his illegal firearm, a sentencing judge could

reasonably conclude that the underlying offense was more serious

than the mine-run of such cases.2

2 A sentencing judge also would not be obliged to vary upward based on a large quantity of ammunition and/or high-capacity magazines. As we have emphasized, sentencing usually involves

- 8 - We caution that sentences should not be determined just

by counting bullets. In cases like this one, quantity is one

factor to consider along with many others. See United States v.

Greig,

(1st Cir. 2013) (recognizing range of

information sentencing judges may consider). That being said, our

case law has identified some guideposts for determining when

additional ammunition may support an upward variance, and on which

charges. Marking the lower end of the spectrum is Rivera-Berríos,

where we vacated an above-guideline sentence for possession of a

machinegun, concluding that possessing 36 rounds of ammunition and

two high-capacity magazines "was entirely consistent with simple

possession of a machine gun."

.

Several cases are closer to the other end of the

spectrum. See United States v. Aponte-Colón,

(1st Cir. 2024) (no abuse of discretion where upward variance for

possessing firearm in furtherance of drug-trafficking crime was

based in part on possession of 123 rounds of ammunition and

multiple high-capacity magazines); Morales-Vélez, 100 F.4th at

considerable discretion and judgment, and a judge might reasonably conclude that excessive ammunition is outweighed by mitigating factors. See generally United States v. Carrasquillo-Vilches,

, 44–45 (1st Cir. 2022) (affirming sentence at high end of guideline range where judge exercised discretion in weighing aggravating and mitigating factors); United States v. Greig,

(1st Cir. 2013) (explaining that "sentencing judges have discretion to consider a variety of information in fashioning a sentence").

- 9 - 340, 344–45 (no abuse of discretion where upward variance for

possessing firearm in furtherance of drug-trafficking crime was

based in part on possession of 125 rounds of ammunition and four

magazines, two of which were high-capacity); United States v.

Bruno-Campos,

(1st Cir. 2020) (no plain

error where upward variance for possessing a machinegun was based

in part on possession of 89 rounds of ammunition and four

magazines, two of which were high-capacity); United States v.

Rivera-Santiago,

, 85–86 (1st Cir. 2019) (no abuse

of discretion where upward variance for unlawfully possessing

firearm was based in part on possession of 127 rounds of ammunition

and five magazines, two of which were high-capacity).

Rosario's case falls on the higher end of this spectrum,

given both the quantity of the contraband and the offense of

conviction, possessing a firearm in furtherance of a drug-

trafficking crime. He constructively possessed 107 rounds of

ammunition, four magazines (three of which were high-capacity),

and another firearm for which he was not convicted. The district

court did not err, plainly or otherwise, by finding these items

differentiated Rosario's case from the garden-variety case of

possessing a firearm in furtherance of a drug-trafficking crime.

2. Community Characteristics

A district court may consider community characteristics

in imposing a sentence. "Community-based considerations are

- 10 - inextricably intertwined with deterrence," and "the incidence of

particular crimes in the relevant community appropriately informs

and contextualizes the relevant need for deterrence." United

States v. Flores-Machicote,

(1st Cir. 2013).

Rosario contends, however, that justifying the upward variance by

comparing Puerto Rico's murder rate to murder rates in other

jurisdictions in the First Circuit improperly led the district

court to impute other crimes to Rosario.

The judge's comparison of murder rates was not a

reversible error. We have cautioned that sentencing judges should

not "focus too much on the community and too little on the

individual." United States v. Polaco-Hance,

(1st Cir. 2024) (quoting Flores-Machicote,

). The

hallmark of sentencing is an individualized assessment of the

considerations listed in

(a). See Gall v. United

States,

, 49–50 (2007). While the need for deterrence

is one factor listed in § 3553(a), it would be an error to justify

an individual defendant's sentence based only on the need for

general deterrence to the exclusion of other factors.

Here, though, the district court did not decide

Rosario's sentence by evaluating only community characteristics.

He considered them alongside other individualized

factors — namely, the additional contraband that Rosario

possessed. The district court discussed Puerto Rico's high murder

- 11 - rate with an eye toward general deterrence, a permissible factor

to weigh during sentencing. See

(a)(2)(B); United

States v. Rivera-Gonzalez,

, 50–51 (1st Cir. 2015)

(explaining that district court's consideration of community

characteristics was not improper where it focused on deterrence

and was considered alongside other individual factors). We find no

error, let alone a plain error, in the district court's

consideration of all these relevant factors.3

3. Constructive Possession

For the first time during oral argument on appeal,

Rosario asserted that the district court erred in finding that he

had constructive possession of the gun, drugs, and ammunition that

Gines-Negron had thrown out the window. Rosario waived this

argument by failing to include it in his opening brief. See United

States v. Leoner-Aguirre,

(1st Cir. 2019)

(challenge to jury instruction was waived where it was raised for

first time during oral argument on appeal). We have excused such

failures on occasion where it was necessary to avoid a miscarriage

of justice. See United States v. Flores-González,

,

3 Comparing Puerto Rico community characteristics against only

other jurisdictions in the First Circuit may not offer the most insightful analysis in determining whether to impose an upward variance. The Sentencing Guidelines are based on nationwide statistics (which include Puerto Rico), so intra-circuit comparisons may not explain why a particular defendant should be punished more or less severely than suggested by the nationwide data factored into the Guidelines.

- 12 - 442 (1st Cir. 2023) (en banc) (opinion of Thompson, J.) (citing

Sindi v. El-Moslimany,

(1st Cir. 2018) (excusing

waiver where appellants challenged permanent injunction barring

certain speech)). This is not such a case. Rosario's argument

depends on factual findings that are unlikely to present themselves

again in the same fact pattern. Rosario's argument also was not

"highly convincing" when he offered it for the first time at oral

argument. El-Moslimany,

(appellant's "highly

convincing" argument was factor in excusing waiver). Though

Rosario argued that the district court erred in finding that he

had constructive possession of the contraband thrown out the

window, his argument did not cite cases or otherwise explain why

a miscarriage of justice would occur if we did not excuse his

waiver. We decline to address the argument.

B. Substantive Reasonableness

Rosario argues that the district court's total sentence

33 months above the guideline range was substantively

unreasonable. In the district court, he argued for a shorter

sentence than the one ultimately imposed. His argument adequately

preserved his substantive reasonableness challenge for appeal, so

we review for abuse of discretion. Holguin-Hernandez v. United

States,

, 173–74 (2020).

When sentencing a convicted defendant, a court must

weigh competing factors and impose a sentence that is "sufficient,

- 13 - but not greater than necessary," to serve multiple,

often-conflicting goals of sentencing.

(a). The

mixture of goals and case-specific factors gives the process an

unavoidable element of discretionary judgment. Reasonable judges

can weigh the same goals and factors and reach a range of

reasonable results. For this reason, we must keep in mind on

appellate review that there is not just one reasonable sentence in

a case but "a universe of reasonable sentencing outcomes."

Ramirez-Ayala,

(quoting United States v. Colón-De

Jesús,

, 26 (1st Cir. 2023)). We review a sentence to

ensure it "falls within this broad universe."

(quoting United

States v. Ortiz-Pérez,

(1st Cir. 2022)). If the

sentence "rests on a 'plausible sentencing rationale' and embodies

a 'defensible result,'" it will be found substantively reasonable.

United States v. Ruiz-Huertas,

(1st Cir. 2015)

(quoting United States v. Martin,

(1st Cir. 2008)).

The sentence in this case is substantively reasonable because it

fulfills both requirements.

The district court gave sound and legally permissible

reasons for imposing the above-guideline sentence here. The

additional firearm, ammunition, and magazines that Rosario

possessed distinguished his offense from the run-of-the-mill

offense under

(c) and the applicable guideline

provisions and supported the upward variance. And the community

- 14 - characteristics mentioned by the district court bolstered the

reasoning behind the sentence.

We have upheld above-guideline sentences in similar

cases where defendants possessed ammunition and magazines in

addition to those for which they were convicted. Polaco-Hance,

103 F.4th at 104–06 (affirming 21-month upward variance for

unlawful possession of machinegun where defendant possessed 111

rounds of ammunition and four extended magazines); United States

v. Morales-Negrón,

, 66–67 (1st Cir. 2020)

(affirming 24-month upward variance for unlawful possession of

machinegun where defendant possessed 57 rounds of ammunition and

four magazines, including one high-capacity magazine); Díaz-Lugo,

963 F.3d at 157–58 (affirming 23-month upward variance for unlawful

possession of machinegun where defendant possessed two machine

guns and four extended magazines following previous

felon-in-possession conviction). We do so for the same reasons

here.

III. CONCLUSION

The judgment of the district court is AFFIRMED.

- 15 -