United States Court of Appeals For the First Circuit

No. 22-1181

UNITED STATES OF AMERICA,

Appellee,

v.

MIGUEL F. RAMIREZ-AYALA,

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, Gelpí and Montecalvo, Circuit Judges.

Jose B. Velez Goveo and Velez & Velez Law Office on brief for appellant.

Maarja T. Luhtaru, Assistant United States Attorney, W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, on brief for appellee.

May 9, 2024 GELPÍ, Circuit Judge. Defendant-Appellant Miguel

Ramirez-Ayala ("Ramirez-Ayala") pled guilty to illegally

possessing firearms and controlled substances in 2015. Having

served his federal prison sentence for these crimes, he commenced

a three-year supervised-release term. But within a year,

Ramirez-Ayala violated his supervised-release conditions by again

possessing controlled substances and a firearm, as well as

committing other violations. Following a revocation sentence of

eighteen months, he began another supervised-release term. During

this second supervised-release term, Ramirez-Ayala committed

multiple violations, including drug and firearm possession, and

absconded from police in a highspeed car chase. In 2021, he pled

guilty to these most recent drug and firearm possession charges,

and another round of revocation proceedings ensued. Ultimately,

Ramirez-Ayala was sentenced to twenty-four months'

imprisonment -- the maximum revocation sentence -- to be served

consecutively to his new conviction.

He now appeals, contending that the district court

sentenced him in a procedurally and substantively unreasonable

manner. Discerning no such error, we affirm.

- 2 - I. BACKGROUND1

We begin with the first offense underlying

Ramirez-Ayala's third term of supervised release (hereinafter,

"15-277"). On March 31, 2015, Puerto Rico Police Department

("PRPD") officers executed a search warrant at a residence in

Bayamón, Puerto Rico. Inside, they arrested Ramirez-Ayala after

they seized multiple rounds of ammunition, drugs, and U.S.

currency. Ramirez-Ayala was then indicted on April 16, 2015, for

possession of ammunition as a felon,

(g)(1), and

possession of a controlled substance with intent to distribute,

He pled guilty to both counts on September 30,

2015, and the district court sentenced him to time served on

August 25, 2017, followed by a three-year term of supervised

release. As conditions of supervised release, the district court

ordered Ramirez-Ayala to obey the directives of his probation

We draw these facts from the record on appeal, including 1

"the uncontested portions of the pre-sentence report[s]" prepared for Ramirez-Ayala's convictions, the plea agreement, and the transcripts for the sentencing and revocation hearings. United States v. Berrios-Miranda,

, 77 n.1 (1st Cir. 2019) (first citing United States v. Lee,

, 490 n.1 (1st Cir. 2018); and then citing United States v. Talladino,

(1st Cir. 1994)); see, e.g., United States v. Sierra-Jiménez,

, 567 (1st Cir. 2024). Ramirez-Ayala was also indicted for another count of 2

possession of a controlled substance with intent to distribute,

, that was eventually dropped pursuant to the plea agreement.

- 3 - officer, participate in a mental health treatment program, and not

possess or use a controlled substance.

Ramirez-Ayala violated those conditions. On April 25,

2018, the probation officer filed a motion requesting that the

district court summon Ramirez-Ayala to answer for ignoring his

instructions, refusing to show up to treatment sessions, and

unlawfully using marijuana and cocaine. At the revocation hearing,

the district court found that Ramirez-Ayala violated those

conditions, revoked his supervised release, and sentenced him to

four months of home detention. At this point, Ramirez-Ayala had

twenty-six months and four days remaining on his

supervised-release term in 15-277.

In June and July 2018, Ramirez-Ayala violated his home

detention conditions by repeatedly leaving his home without prior

authorization. On August 15, 2018, his probation officer reported

these violations to the district court and requested that the court

extend Ramirez-Ayala's home detention term by two months and change

his conditions to include home incarceration. The district court

approved the probation officer's request on the same day.

Nevertheless, Ramirez-Ayala committed his second violation

a few months later. On April 9, 2019, his probation officer received

information from the PRPD to the effect that the state filed two

criminal complaints against him for drug and firearm possession. In

reporting this violation to the district court, the probation officer

- 4 - summarized that the PRPD searched Ramirez-Ayala's residence and

discovered marijuana, buprenorphine strips, and drug paraphernalia.

And when Ramirez-Ayala saw the police searching his home, he fled

the scene and eluded them until he was brought before the district

court to answer for his violations. On February 6, 2020, the

district court revoked Ramirez-Ayala's supervised release based

on, inter alia, incurring new criminal charges in state court,

possessing illegal narcotics, and possessing a firearm.

Ramirez-Ayala was sentenced to eighteen months' imprisonment,

followed by two years of supervised release.

We turn lastly to the events underlying Ramirez-Ayala's

third violation, again involving possession of a firearm, after he

was released from imprisonment in August 2020. On April 29, 2021,

someone carjacked and robbed the driver of a Kia Soul at gunpoint

in Bayamón. PRPD officers, after receiving a tip that the Kia

Soul was seen at a toll on Highway 22, spotted the vehicle and

ordered the driver -- Ramirez-Ayala -- to stop. He did not.

Instead, he led PRPD officers on a high-speed chase through the

area, crashed his car into several other vehicles, and fled on

foot, not before tossing a bag containing a pistol and ammunition

from the vehicle. He did not get far before the officers

apprehended him.

After arresting Ramirez-Ayala, the PRPD officers

discovered pictures and a video of him wielding a rifle and a

- 5 - different pistol than the one that was found in his tossed bag.

He was indicted on May 19, 2021, and ultimately charged in a

superseding indictment on August 25, 2021, with two counts of

possessing a firearm and ammunition as a felon,

(g)(1).

This new arrest triggered revocation proceedings in

15-277. The probation officer filed a motion to that effect,

listing Ramirez-Ayala's new charges. The motion added that

Ramirez-Ayala tested positive for narcotics while on supervised

release, namely, buprenorphine on August 24, 2020, and

cannabinoids on October 5, 2020, and March 5, 2021.

Meanwhile, in his most recent firearm possession case,

Ramirez-Ayala pled guilty to both counts of the indictment,

pursuant to a straight plea in October 2021. The probation officer

prepared a Presentence Investigation Report ("PSR"), listing not

only the litany of supervised-release violations in 15-277 and

offense conduct in the new case, but also his recent positive drug

tests. Ramirez-Ayala did not object to the contents of the PSR.

On February 15, 2022, the district court held

Ramirez-Ayala's sentencing and revocation hearings back-to-back.3

His counsel asked the district court to recognize that he was

3 As Ramirez-Ayala mentions in his brief, he "impliedly admitted" that he "violated his condition of supervised release" in 15-277 with his conviction in the new case.

- 6 - repentant and to "take into account all his life. It's right there

in the PSR." After hearing from Ramirez-Ayala, his counsel, and

the government, the district court sentenced him to the statutory

maximum -- 120 months' imprisonment on each count, for which he

did not appeal, to run concurrently and followed by three years of

supervised release. Before doing so, the district court noted

that it had considered the PSR.

Turning to Ramirez-Ayala's revocation, his counsel

requested that he be sentenced to time served. The government, in

turn, argued for twenty-four months' imprisonment -- the statutory

maximum, to run consecutively with his new term of

imprisonment -- based on Ramirez-Ayala's criminal history and

string of violations. The government emphasized that he squandered

the "multiple opportunities" he received with "gentle

disposition[s]" on his prior revocation sentences.

Ramirez-Ayala's counsel responded that this was too harsh and that

120 months was "enough," so if not time served, his counsel

requested that Ramirez-Ayala "at least . . . be sentenced to the

revocation concurrently with the previous sentence of 120 months."

The district court found that Ramirez-Ayala violated his

supervised-release conditions. In doing so, the district court

pointed to his guilty plea in the new case and his recent positive

drug tests. The district court calculated his advisory sentencing

range -- fifteen to twenty-one months' imprisonment, based on

- 7 - U.S.S.G. §§ 7B1.1(a)(1), 7B1.4(a), and a Criminal History category

II -- and acknowledged that, at most, Ramirez-Ayala could receive

twenty-four months' imprisonment for committing a Class C felony.

The district court then considered the relevant

(a) factors incorporated into

. It

noted "the seriousness of [Ramirez-Ayala's] violations[,]" that

this was his "third" violation, that he pled guilty to "new

criminal behavior" featuring "similar conduct to his previous

revocation[,]" and that he used "buprenorphine and marijuana,

which shows total disregard of his supervised release conditions,

the law, his safety, the safety of the community, and the Court."

And so, the district court sentenced Ramirez-Ayala to twenty-four

months' imprisonment, to run consecutively with his sentence in

the new case. The district court emphasized that this was "[t]o

reflect the seriousness of the offense, promote respect for the

law, provide just punishment for the offense,4 afford adequate

deterrence, and to protect the public," and concluded that this

4 Although Ramirez-Ayala does not raise the issue, the district court's recitation of the § 3553(a) factors which Congress did not insert into § 3583(e) -- "to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense" -- is not plain error. See United States v. Tanco-Pizarro,

(1st Cir. 2018) (explicating why, under our caselaw, a district court did not plainly err when it considered all pertinent § 3553(a) factors in revoking the defendant's supervised release under § 3583(e)).

- 8 - sentence would be sufficient but not greater than necessary. This

appeal5 followed.

II. DISCUSSION

A. Standard of Review

"Where challenges are to the procedural and substantive

reasonableness of a sentence, our review process is bifurcated: we

first determine whether the sentence imposed is procedurally

reasonable and then determine whether it is substantively

reasonable." United States v. Reyes-Torres,

, 6-7 (1st

Cir. 2020) (internal quotation marks and alteration omitted)

(quoting United States v. Sayer,

(1st Cir. 2019)).

"When assessing the procedural reasonableness of a sentence," we

Ramirez-Ayala devotes much of his brief to arguing why his 5

filing was timely, even though he filed his notice of appeal outside of the fourteen-day window under Federal Rule of Appellate Procedure 4(b)(1)(A)(i). But the government believes that the appeal is timely, even though the judgment of conviction was entered on February 15, 2022, and Ramirez-Ayala filed his notice of appeal on March 4, 2022 -- seventeen days later. We need not fixate on this arithmetical impasse, however. "Rule 4(b)'s time limits are not mandatory and jurisdictional in the absence of a timely objection from the government," and the government waived the issue. United States v. Reyes-Santiago,

, 458–60 (1st Cir. 2015) (internal quotation marks omitted) (holding that the government waived its Rule 4 challenge where it implied in its opening brief that the defendant's notice of appeal was timely). Moreover, "because we find that [Ramirez-Ayala's] appeal fails on the merits, we may assume timeliness arguendo and indeed do so here." United States v. Vázquez-Rosario,

, 569 (1st Cir. 2022) (first citing United States v. Texeira-Nieves,

, 52–53 (1st Cir. 2022); then citing Tacuri-Tacuri v. Garland,

, 472 (1st Cir. 2021); and then citing United States v. Norman,

, 107 n.5 (3d Cir. 2012)).

- 9 - consider de novo "the sentencing court's interpretation and

application of the sentencing guidelines and assay the court's

factfinding for clear error." United States v. Cortés-Medina,

(1st Cir. 2016) (citing United States v.

Flores-Machicote,

(1st Cir. 2013)).

Ramirez-Ayala argued for a shorter sentence at the

revocation hearing, so we review that preserved challenge for an

abuse of discretion. See United States v. Colón-De Jesús,

, 25-26 (1st Cir. 2023). Likewise, as Ramirez-Ayala concedes,

he did not object to the district court's findings as to his

alleged use of marijuana and buprenorphine, so that procedural

argument is subject to plain-error review. See

.

"To survive plain-error review and merit resentencing,

a defendant must make four showings: (1) an error occurred,

(2) that was clear or obvious, (3) that affected his substantial

rights, and (4) that seriously impaired the fairness, integrity,

or public reputation of judicial proceedings."

at 21 (quoting

United States v. Millán-Isaac,

(1st Cir. 2014)).

We acknowledge that "[t]he plain-error bar for challenging a

district court's factual findings is especially high." United

States v. González-Andino,

, 568 (1st Cir. 2023).

"[I]f an error pressed by the appellant turns on a factual finding

[he] neglected to ask the district court to make, the error cannot

be clear or obvious unless he shows that the desired factual

- 10 - finding is the only one rationally supported by the record below."

(alterations in original) (internal quotation marks omitted)

(quoting United States v. Takesian,

, 563 (1st Cir.

2019)). As for an abuse of discretion, it "occurs when a relevant

factor deserving of significant weight is overlooked, or when an

improper factor is accorded significant weight, or when the court

considers the appropriate mix of factors, but commits a palpable

error of judgment in calibrating the decisional scales." United

States v. Irizarry-Sisco,

, 44 (1st Cir. 2023) (quoting

United States v. Taylor,

(1st Cir. 2017)).

B. Procedural Reasonableness

Our first task is to "ensure that the district court did

not commit any 'significant procedural error' to arrive at a

sentence." United States v. Flores-Quiñones,

, 134

(1st Cir. 2021) (quoting Sayer,

). As relevant here,

a "significant procedural error" includes "selecting a sentence

based on clearly erroneous facts." Gall v. United States,

(2007).

Ramirez-Ayala contends that the district court's finding

that he "admitted or that the government had proved . . . that he

used or tested positive to buprenorphine and marijuana" was clearly

erroneous. He perceives only silence in the record on whether he

tested positive for either substance, highlighting that only the

"bare allegations" in the supervised release violation petition

- 11 - supported this conclusion. He thus concludes that this crucial

finding, which the district court factored heavily into its upward

variance, was not supported by a preponderance of the evidence.

"[F]actual findings made at sentencing must be supported

by a preponderance of the evidence." Colón-De Jesús, 85 F.4th at

21 (quoting United States v. Rivera-Ruiz,

, 181 (1st

Cir. 2022)). In making these findings, sentencing courts may

depend upon any "relevant information regardless of admissibility

at trial . . . provided it has 'sufficient indicia of reliability

to support its probable accuracy.'" Lee,

n.4

(quoting United States v. Mills,

(1st Cir.

2013)). Thus, a "sentencing court 'may accept any undisputed

portion of the [PSR] as a finding of fact[,]'" United States v.

González,

(1st Cir. 2017) (first alteration in

original) (quoting Fed. R. Crim. P. 32(i)(3)(A)), for "generally,

a PSR bears sufficient indicia of reliability." United States v.

Díaz-Rivera,

, 27 (1st Cir. 2020) (quoting United States

v. Rondón-García,

(1st Cir. 2018)); see also Fed.

R. Crim. P. 32(i)(3)(A) ("At sentencing, the court . . . may

accept any undisputed portion of the presentence report as a

finding of fact . . . ."); Colón-De Jesús, 85 F.4th at 22

(explaining that "a district court does not err by relying on

unobjected-to portions of a PSR at sentencing"). After all, the

parties must timely object to a PSR, see Fed. R. Crim. P. 32(f),

- 12 - thus we recognize that, absent an objection, "[t]here is no

reason . . . to doubt that" the conduct the PSR describes

"occurred." United States v. Tabares,

(1st Cir.

1991); see, e.g., Rivera-Ruiz, 43 F.4th at 184-85.

With that in mind, Ramirez-Ayala does not show clear or

obvious error. Contrary to his portrayal, the PSR for his new

case recited the positive drug tests upon which the district court

relied, and to which he never objected below.6 Thus, the PSR bore

"sufficient indicia of reliability" without an objection to the

contrary below. See, e.g., Colón-De Jesús, 85 F.4th at 22; United

States v. Portell-Márquez,

, 538 (1st Cir. 2023);

Tabares,

. And, as the district court expressed in

the sentencing hearing just moments before the revocation hearing,

it so relied on this dependable information. Even Ramirez-Ayala

acknowledged the PSR's reliability when he urged the district court

to consider it in crafting his sentence. See Colón-De Jesús, 85

F.4th at 22 ("In fact, Colón referenced the PSR multiple times in

support of his own argument for a more lenient sentence." (emphasis

6 The government characterizes Ramirez-Ayala's failure to object to the PSR as a waiver. But "[w]here a defendant's claim would fail even if reviewed for plain error, we have often declined to decide whether the defendant's failure to raise the issue below constituted waiver or mere forfeiture." United States v. Williams,

, 5 (1st Cir. 2022) (quoting United States v. Acevedo-Sueros,

(1st Cir. 2016)); see Severino-Pacheco, 911 F.3d at 20 n.5; United States v. Gaffney-Kessell,

(1st Cir. 2014). Thus, we need not delve into whether Ramirez-Ayala waived this issue.

- 13 - omitted)). Taken together, the PSR's reiteration of his positive

drug tests, his failure to object below, and his reliance on the

PSR otherwise in the proceedings below show that his conclusion is

not "the only one rationally supported by the record below."

González-Andino, 58 F.4th at 568; cf. United States v.

Morales-Cortijo,

, 34–35 (1st Cir. 2023) (explaining

that the appellant's failure to object to facts described in the

PSR meant that there was no plain error in the district court

drawing conclusions from those facts).7

Thus, Ramirez-Ayala's procedural-reasonableness

argument falters on plain-error review.

C. Substantive Reasonableness

Next, Ramirez-Ayala targets the upward variance as

substantively unreasonable. He argues principally that the

district court did not offer a worthy justification that accounted

for his individual characteristics and circumstances, noting that

it lacked a "plausible explanation" for a twenty-four-month

sentence. Accordingly, we ask whether the district court gave a

7For these same reasons, Ramirez-Ayala's muddled attempts to characterize this sequence as violating his due-process rights fail. See, e.g., Berrios-Miranda, 919 F.3d at 80−81; United States v. Molina-Marrero,

(1st Cir. 2003) (finding that the district court's reliance on facts alleged in a PSR to enhance the defendant's sentence did not violate due process because the defendant had access and could object to the PSR).

- 14 - "plausible rationale" for the variance. See United States v.

Ortiz-Pérez,

, 113 (1st Cir. 2022).

"In the sentencing paradigm 'reasonableness is a protean

concept.'" United States v. Santiago-Lozada,

, 294

(1st Cir. 2023) (quoting United States v. Martin,

(1st Cir. 2008)). "An inquiry into the substantive reasonableness

of a sentence must 'take into account the totality of the

circumstances, including the extent of any variance from the

Guidelines range.'" United States v. Contreras−Delgado,

(1st Cir. 2019) (quoting Gall,

). "We

remain mindful that '[t]here is no one reasonable sentence in any

given case but, rather, a universe of reasonable sentencing

outcomes.'" Colón-De Jesús, 85 F.4th at 26 (alteration in

original) (quoting United States v. Clogston,

(1st Cir. 2011)). "Our task, then, is 'to determine whether the

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

Ortiz-Pérez, 30 F.4th at 113 (alteration in original) (quoting

United States v. Rivera-Morales,

, 21 (1st Cir. 2020)).

When "a sentencing court imposes a variant sentence, that sentence

must be explained, either explicitly or by fair inference from the

sentencing record."

at 114 (quoting United States v.

Montero-Montero,

(1st Cir. 2016)). "In making

this determination, we look for the hallmarks of a substantively

reasonable sentence: 'a plausible sentencing rationale and a

- 15 - defensible result.'" United States v. Díaz-Lugo,

,

157 (1st Cir. 2020) (quoting Martin,

).

Gleaning a "fair inference" from the record, we discern

those hallmarks here. Montero-Montero,

. The

government argued for a twenty-four-months prison sentence based

upon Ramirez-Ayala's repeated violations. Against this backdrop

and with its explicit references to the applicable § 3553(a)

factors, the district court thus reached its upward variance based

on the nature and circumstances of Ramirez-Ayala's illegal gun

possession and his supervised-release-violation history. We

gather this from the court's reference to how he (1) jeopardized

public safety with his firearm offenses and flight, and

(2) disregarded the law with his string of supervised-release

violations. Thus, "[w]e find nothing implausible about the

district court's sentencing rationale[,]" Colón-De Jesús, 85

F.4th at 26–27 (affirming an upward variance imposed to punish a

defendant's serial disregard of supervised-release conditions in

committing another firearm offense), and recognize that sentencing

a repeat violator who committed another gun crime and fled the

police to a three-month variant sentence is within the realm of

reasonable outcomes. See United States v. Cruz-Olavarria,

(1st Cir. 2019) (affirming an upward variance

to impose a maximum revocation sentence on top of a 120-month

- 16 - sentence where, in part, the defendant committed another firearm

offense while being on supervised release).

We also bear in mind that "[a] defendant who violates

the conditions of his supervised release breaches the trust that

the court has extended to him." United States v. Vélez-Andino,

, 118 (1st Cir. 2021) (citing United States v.

Santiago-Rivera,

(1st Cir. 2010)). The district

court implicitly accounted for how Ramirez-Ayala's third

violation -- another firearm offense in a series of firearm

offenses -- breached that trust when it noted the "seriousness" of

his conduct and how he pled guilty to "similar conduct to his

previous revocation." See Colón-De Jesús, 85 F.4th at 27;

Díaz-Lugo, 963 F.3d at 157–58. Under these circumstances, an

upward variance penalizing his recalcitrance is reasonable.

Ramirez-Ayala's further protest -- that the district

court ought to have placed more weight on his arguments stressing

mitigation and urging a lesser sentence -- rings hollow. "That

the sentencing court chose not to attach to certain of the

mitigating factors the significance that the appellant thinks they

deserved does not make the sentence unreasonable," Clogston,

(citing United States v. Anonymous Defendant,

(1st Cir. 2010)), nor does the fact that it did not sentence

him "according to his counsel's recommendation." United States v.

Mulero-Algarín,

(1st Cir. 2017) (quoting United

- 17 - States v. Butler-Acevedo,

(1st Cir. 2011)).

Rather, the district court showed that it considered

Ramirez-Ayala's arguments and the relevant § 3553(a) mitigating

factors when it said it did. See United States v.

Alejandro-Rosado,

(1st Cir. 2017) (affording

weight to a district court's explicit statement that it considered

the § 3553(a) factors and heard the defendant's arguments). It

then varied upward after accounting for the circumstances,

deterrence, public safety, and the seriousness of the violation.

See, e.g., id. at 441 (affirming the district court for varying

upward in a revocation proceeding where it highlighted these same

factors). It did not abuse its discretion by taking that route.

III. CONCLUSION

We need not tarry further. The district court is

affirmed.

- 18 -