United States Court of Appeals For the First Circuit

Nos. 22-1353 22-1447

UNITED STATES OF AMERICA,

Appellee,

v.

VICTOR JORDAN CALDERON-ZAYAS,

Defendant, Appellant.

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

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

Before

Barron, Chief Judge, Thompson and Montecalvo, Circuit Judges.

Jose A. Arce-Diaz for appellant. Jeanette M. Collazo-Ortiz, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Maarja T. Luhtaru, Assistant United States Attorney, were on brief, for appellee.

May 17, 2024 MONTECALVO, Circuit Judge. Victor J. Calderon-Zayas

appeals from a sixty-month, above-guidelines sentence imposed

after he pled guilty to aiding and abetting another person to

illegally possess a machine gun in violation of

and

922(o) ("§ 922(o) sentence") as well as from an eighteen-month

sentence, to be served consecutively to the § 922(o) sentence,

imposed in the associated revocation proceeding ("revocation

sentence"). Calderon-Zayas challenges the § 922(o) sentence,

arguing that the sentencing court overemphasized the aggravating

factors surrounding the offense and overlooked the mitigating

factors in crafting his sentence and impermissibly relied on the

dangerous nature of the firearm involved as a basis for the upward

variance. As to the revocation sentence, he argues that the

sentencing court erred by neglecting to consider the § 922(o)

sentence when crafting appropriate punishment for the supervised

release violation. Having found no error, we affirm both the

§ 922(o) and revocation sentences.

I. Background

As this appeal follows a guilty plea, our recitation of

the facts is derived from "the plea agreement, the undisputed

sections of the presentence investigation report[s], and the

transcripts of the change-of-plea and sentencing hearings."

United States v. Spinks,

(1st Cir. 2023) (cleaned

- 2 - up) (quoting United States v. Ubiles-Rosario,

, 280

n.2 (1st Cir. 2017)).

In 2013, Calderon-Zayas pled guilty to conspiracy to

possess with intent to distribute cocaine within 1,000 feet of a

protected location, in violation of

(a), 846, and

860, and was sentenced to 60 months' imprisonment and eight years

of supervised release. As a condition of that supervised release,

Calderon-Zayas was prohibited from, among other things, possessing

or having access to a firearm or ammunition. In 2017,

Calderon-Zayas was released and began serving the eight-year term

of supervised release.

On June 14, 2021, Puerto Rico Police Department officers

arrived at a housing project to serve a summons in an unrelated

matter. Upon arrival, the officers observed two men sitting inside

of a parked car, one in the driver's seat (later identified as

Calderon-Zayas) and another in the passenger seat (later

identified as Yadiel Manuel Ramos-Santiago). The officers

identified themselves as police officers as they approached the

car. One officer observed Ramos-Santiago raise a pistol. When

the officers ordered him to stop, Ramos-Santiago lowered the gun

and attempted to flee. The officers arrested both men. Agents

from the Bureau of Alcohol, Tobacco, Firearms, and Explosives later

arrived at the scene.

- 3 - Law enforcement officers searched the car and seized a

.40 caliber Glock pistol, modified to fire automatically

("modified pistol"); another .40 caliber Glock pistol, this one

unmodified; fifty-four rounds of .40 ammunition; one fifteen-round

capacity Glock magazine; two twenty-two-round capacity Glock

magazines; and a rifle magazine. A federal grand jury indicted

Calderon-Zayas on two counts: (1) being a prohibited person in

possession of firearms and ammunition in violation of

(g)(1); and (2) aiding and abetting Ramos-Santiago to possess

the modified pistol in violation of

and 922(o).

While that case was proceeding, the United States Probation Office

for the District of Puerto Rico ("Probation") initiated a

revocation proceeding based on Calderon-Zayas's June 14th arrest.

Calderon-Zayas pled guilty to count two of the

indictment, and, in exchange, the government agreed to dismiss

count one. Under the plea agreement, the parties agreed that,

regardless of the applicable criminal history category,

Calderon-Zayas could request a sentence of thirty-seven months'

imprisonment and the government could request a sentence of

forty-six months' imprisonment. In anticipation of sentencing,

Probation prepared a Presentence Report ("PSR"). Probation

calculated a total offense level of nineteen, a criminal history

category of III, and a resulting United States Sentencing

Guidelines ("guidelines") sentencing range of thirty-seven to

- 4 - forty-six months' imprisonment. The court accepted

Calderon-Zayas's change of plea.

Prior to sentencing, Calderon-Zayas filed a sentencing

memorandum. In the sentencing memorandum, he emphasized certain

information from the PSR, specifically noting that he suffered

from intermittent explosive disorder, which involves sudden

outbursts of rage, aggression, or violence; maintained a

continuous work history; experienced trauma during his childhood;

and was not engaged in a violent or drug-based offense when he was

arrested in June 2021. He argued that each of these were

mitigating factors supporting a sentence on the lower end of the

guidelines range.

On April 18, 2022, the court held a sentencing hearing

on the § 922(o) charge. There, Calderon-Zayas's counsel argued

that "the sentencing guidelines and the [PSR] already . . .

consider[] the facts that are stated by the government . . . . So

the fact that it's a machine gun involved in the case has already

been considered in the sentencing guideline[s] calculations." He

also described Calderon-Zayas's family situation, namely that he

had a supportive wife and two children. He then requested a

within-guidelines sentence of thirty-seven months' imprisonment.

The government requested the guidelines maximum of forty-six

months' imprisonment.

- 5 - The district court then confirmed that the applicable

guidelines range was thirty-seven to forty-six months'

imprisonment, referenced Calderon-Zayas's age, employment history,

and history of using cannabis as well as Percocet and Xanax without

prescriptions, and summarized the facts of the offense before

addressing the type of gun involved in the case.

The sentencing court then discussed the nature of the

modified pistol. The court explained that, "[s]hort of bombs,

missiles, and biochemical agents, [it could] conceive of few

weapons that are more dangerous than machine guns." The court

described how two aspects of the gun in question made it more

dangerous than a run-of-the-mill, manufactured machine gun:

First, the gun in question was a modified machine gun, meaning

that it was not originally manufactured as an automatic weapon

but, rather, became automatic via an after-market alteration.

Second, the gun was a machine pistol and, according to the district

court, machine pistols that are also modified are particularly

dangerous. The court also observed that "[t]he guidelines do not

differentiate between [manufactured and modified] machine guns."

Finally, the court noted the amount of ammunition seized,

fifty-four rounds, the "serious and acute problem of gun violence

in Puerto Rico," the purportedly high recidivism rate for firearms

offenders, and the need to protect the community from future crimes

- 6 - by Calderon-Zayas.1 The court then sentenced Calderon-Zayas to an

upwardly variant sentence of sixty-months' imprisonment followed

by three years of supervised release.2

1 The court also referenced the Supreme Court's decision in Kimbrough v. United States,

(2007), and briefly stated its disagreement "with the Sentencing Commission's low guideline[s] range in machine gun cases." Given our analysis, however, we need not address Kimbrough in order to resolve this appeal. 2 During the pendency of this appeal, prior to oral argument, Calderon-Zayas filed a motion, pursuant to

(c), to reduce his sentence to fifty-four months based on a recent retroactive amendment to the guidelines that reduced Calderon-Zayas's guidelines range for the § 922(o) sentence to thirty-three to forty-one months' imprisonment. The government agreed that the new range applied and similarly advocated for a sentence reduction that would reflect the original sentence's variance of fourteen months above guidelines. The court granted the motion and reduced the sentence from sixty months to fifty-four months. However, because this appeal was pending at the time, the sentencing court "lacked jurisdiction to enter the order reducing the sentence." United States v. Maldonado-Rios,

(1st Cir. 2015) (per curiam). When faced with a § 3582(c) request to modify a sentence while an appeal of the sentence is pending, a sentencing court can "state[] either that it would grant the motion or that the motion raises a substantial issue." Id. (alteration in original) (quoting Fed. R. App. P. 12.1(a)). We thus interpret the court's putative grant as an order stating that it would grant the motion. See id. at 65. Accordingly, we have a choice between "'remand[ing] for further proceedings but retain[ing] jurisdiction,' dismissing the appeal, or continuing to hear the appeal." Id. (alterations in original) (quoting Fed. R. App. P. 12.1(b)). Because the district court indicated its intent to retain the upward variance, it does not impact the merits of this appeal and, therefore, does not hinder our consideration. Accordingly, we opt to continue to hear the appeal. On remand, the district court may enter an order modifying Calderon-Zayas's sentence based on the guidelines amendment.

- 7 - Through counsel, Calderon-Zayas objected to the

procedural and substantive unreasonableness of the sentence.3

On May 11, 2022, several weeks after the § 922(o)

sentencing, the court held the final revocation hearing.

Calderon-Zayas requested that the revocation sentence either run

concurrently with the § 922(o) sentence or, if it was to run

consecutively, that the sentence be limited to six months of

imprisonment. To support his position, he argued that the

above-guidelines sentence in the § 922(o) case warranted a less

harsh revocation sentence. The government requested an

eighteen-month revocation sentence –– the top of the guidelines

range –– and noted that "the guidelines call for a consecutive

sentence." The court then found that Calderon-Zayas had violated

the terms of his supervised release and, accordingly, revoked the

supervised release. The court confirmed that the applicable

guidelines range was twelve to eighteen months' consecutive

imprisonment; indicated its consideration of the § 3553(a) factors

3 Defense counsel's full objection reads: The defense defer from the reason as articulated by the Court for the upward variance, so we are objecting to the length of the sentencing, and we also object to it procedurally, Your Honor, because, as we mentioned before, we believe that the reasons that the Court or the grounds for the Court articulating the upward variance are already considered by the Sentencing Guideline[s].

- 8 - and seriousness of the violation; and noted that this was

Calderon-Zayas's second violation proceeding, there was a short

span of months between violations, and Calderon-Zayas's failure to

"take advantage of" Probation's efforts to help. The court then

determined that, "[t]o reflect the seriousness of

[Calderon-Zayas's] offense, promote respect for the law, provide

just punishment for his offense, afford adequate deterrence, and

protect the public from further crimes," a sentence of eighteen

months' imprisonment, to be served consecutively to the § 922(o)

sentence, was warranted. Through counsel, Calderon-Zayas objected

to the substantive and procedural reasonableness of the revocation

sentence, arguing that the court did not take into consideration

the upward variance in the § 922(o) case. Calderon-Zayas timely

appealed both sentences.

II. Discussion

A. § 922(o) Sentence4

We review claims of sentencing error within a two-step

framework. First, we look to the procedural reasonableness of a

sentence. United States v. Ruperto-Rivera,

(1st

4To begin, Calderon-Zayas argues that the waiver clause contained in the plea agreement does not apply to this appeal. The plea agreement provides that, "if the . . . sentence imposed . . . is 46 months or less, [Calderon-Zayas] waives the right to appeal." As the court imposed a sentence above forty-six months, we agree that the clause is not applicable here. Further, the government does not contend that the appeal waiver has been triggered.

- 9 - Cir. 2021). Next, assuming we conclude that the sentence is

procedurally reasonable, we assess the substantive reasonableness

of the sentence.

.

From what we can discern, Calderon-Zayas mounts two

basic challenges to his § 922(o) sentence: (1) that the court

improperly balanced the § 3553(a) factors by giving insufficient

weight to his mitigation arguments and (2) that the court

improperly relied on the dangerousness of the modified pistol in

imposing an above-guidelines sentence.5

As to the first challenge, he argues that the sentencing

court "failed to adequately evaluate the § 3553(a) factors brought

to its attention," namely his mental health, the lack of drugs or

violence in the underlying crime, his good work history, his stable

family, and his need for mental health treatment as opposed to

incarceration. Calderon-Zayas insists that the sentencing court

instead "placed all its attention [o]n the negative factors and

disregarded the positive individual characteristics" that he

presented. With respect to his second challenge, he argues that

5 To the extent Calderon-Zayas seeks to mount a challenge to the court's reliance on the "serious and acute problem of gun violence in Puerto Rico," that challenge fails. Because Calderon-Zayas provides nothing more than a quote to a since withdrawn decision, see United States v. Flores-González,

(1st Cir.), reh'g en banc granted, op. withdrawn,

(1st Cir. 2022), and on reh'g en banc,

(1st Cir. 2023), any argument in this vein is waived due to inadequate briefing, see United States v. Cruz-Ramos,

(1st Cir. 2021).

- 10 - the court erred in relying on the dangerousness of the modified

pistol as a basis for the upward variance because United States v.

Rivera-Berríos,

(1st Cir. 2020), is controlling on

the question of whether a sentencing court can rely on the

dangerousness of machine guns for an upward variance in a § 922(o)

case.

From his briefing, it is not clear whether

Calderon-Zayas seeks to mount a procedural reasonableness

challenge, a substantive reasonableness challenge, or both. Thus,

out of "an abundance of caution, we inspect his claims, where

applicable, through both lenses."6 Ruperto-Rivera,

.

1. Procedural Reasonableness

We review preserved claims of procedural error for abuse

of discretion.

. "To preserve a claim of procedural

sentencing error for appellate review, a defendant's objection

6We have previously considered similar types of challenges to the ones that Calderon-Zayas raises as both procedural and substantive unreasonableness claims. See United States v. Melendez-Hiraldo,

(1st Cir. 2023) (assessing alleged "fail[ure] to consider relevant mitigating factors" under procedural reasonableness); United States v. Madera-Ortiz,

, 30–31 (1st Cir. 2011) (considering alleged failure to "fully consider mitigating circumstances" under substantive reasonableness); United States v. García-Pérez,

(1st Cir. 2021) (assessing similar Rivera-Berríos argument under procedural reasonableness); United States v. Flores-Nater,

(1st Cir. 2023) (assessing question of whether "the upward variance . . . rest[ed] on more than factors already accounted for in the guidelines calculus" under substantive reasonableness).

- 11 - need not be framed with exquisite precision. It is enough if the

objection is 'sufficiently specific to call the district court's

attention to the asserted error.'" Rivera-Berríos,

(citations omitted) (quoting United States v. Soto-Soto,

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

Here, we review both of Calderon-Zayas's challenges for

abuse of discretion,7 first addressing, and rejecting, his

7 The government argues that Calderon-Zayas's challenge to the court's failure to adequately consider mitigating factors was not preserved for our review because he did not specifically object to the purported error after the sentence was handed down. After the court issued the sentence, the sentencing transcript reflects Calderon-Zayas's counsel stating that "[t]he defense defer from the reason as articulated by the Court for the upward variance, so we are objecting to the length of the sentencing." See note 3 supra. We doubt Calderon-Zayas's counsel intended to suggest that Calderon-Zayas "defer[red]" to or accepted the district court's sentencing rationale, as he then proceeded to object to the sentence. Moreover, when considering the "broader context" of the sentencing hearing, counsel's objection can be more readily understood as referring back to the mitigating factors presented to the court prior to sentencing and thus implying that Calderon-Zayas took issue with the court's reasoning with respect to its application of the § 3553(a) factors. See United States v. Perez-Delgado,

, 20–21 (1st Cir. 2024) (noting that "the broader context of this particular sentencing hearing makes it 'contextually clear' that defense counsel's objection and specific reference to the sentence being above the [guidelines sentencing range] put the district court sufficiently on notice" (quoting United States v. Colón-Cordero,

(1st Cir. 2024))). But given the lack of clarity from the transcript itself, for purposes of this appeal, we need not decide whether this objection preserved Calderon-Zayas's challenge on the mitigating factors issue; instead, we assume in Calderon-Zayas's favor that his challenge is preserved and review for abuse of discretion. The parties agree that Calderon-Zayas's Rivera-Berríos challenge is preserved.

- 12 - contention that the sentencing court failed to consider mitigating

§ 3553(a) factors. Calderon-Zayas has not explained how the

sentencing court "failed to adequately evaluate the § 3553(a)

factors," such as his mental health struggles and currently stable

family life. Though consideration of the § 3553(a) factors is

necessary, "we do not require an express weighing of mitigating

and aggravating factors or that each factor be individually

mentioned." United States v. Lozada-Aponte,

(1st Cir. 2012). Each of the potentially mitigating factors that

Calderon-Zayas cites was presented to the sentencing court in the

PSR, in Calderon-Zayas's sentencing memorandum, and during oral

argument. "[T]hat the district court did not explicitly mention

[these factors] during the sentencing hearing suggests they were

unconvincing, not ignored."

Here, the record demonstrates

that the sentencing court properly "sift[ed] [through] the

available information and balanc[ed] the pertinent factors (both

mitigating and aggravating)." United States v. Madera-Ortiz,

(1st Cir. 2011).

Having rejected Calderon-Zayas's first challenge, we

next address his contention that the court improperly relied on

the dangerousness of the modified pistol. He argues that the court

erred in sentencing him above guidelines because the guidelines

already account for the dangerousness of machine guns, citing

- 13 - Rivera-Berríos to support this claim. But Rivera-Berríos is not

controlling here.

Unlike Rivera-Berríos, the district court here relied

not only on the general dangerousness of machine guns, see

, but also on the fact that the machine gun

Calderon-Zayas possessed was a pistol that was modified to fire

automatically, which the court deemed to be more dangerous than

the average machine gun;8 the "serious and acute problem of gun

violence in Puerto Rico"; the high recidivism rate for firearms

offenders; and the need to protect the community from additional

offenses by Calderon-Zayas, who, the court emphasized, had

committed the machine-gun offense while on supervised release.

Thus, Rivera-Berríos does not require that we vacate the sentence,

and we must conclude that Calderon-Zayas's sentence is

procedurally reasonable.9

We note, however, that Calderon-Zayas does not challenge 8

the veracity or reliability of the district court's statements about the increased dangerousness of modified machine guns or machine pistols. Accordingly, we do not render any conclusions about the ultimate propriety of the district court's reliance on this particular sentencing justification. During oral argument, Calderon-Zayas raised, for the first 9

time, an argument that the guidelines account for all types of machine guns, including those modified after manufacture and pistol machine guns. However, as he raised this specific argument for the first time during oral argument, it is waived. See United States v. Cardona,

, 75 n.2 (1st Cir. 2023).

- 14 - 2. Substantive Reasonableness

Having established that Calderon-Zayas's procedural

reasonableness challenge fails, we next assess the substantive

reasonableness of the § 922(o) sentence, reviewing for abuse of

discretion. See Ruperto-Rivera,

. Here,

Calderon-Zayas's challenge is preserved for review because he

argued for a shorter sentence before the district court. See

Melendez-Hiraldo,

("[W]e have consistently held

that by arguing for a shorter sentence before the district court,

a defendant preserves a challenge to the substantive

reasonableness of his sentence on appeal.").

"There is a broad range of reasonable outcomes in the

sentencing context and our task is simply to determine whether the

sentence falls within that permissible range. The components of

a substantively reasonable sentence are a plausible rationale and

a defensible result."

(cleaned up). Furthermore, "we cannot

substitute our judgment of the appropriate sentence for that of

the sentencing court; to the contrary, we must accord significant

deference to the court's informed determination that the

[§] 3553(a) factors justify the sentence imposed." United States

v. Rivera-Morales,

(1st Cir. 2020).

Where a sentencing court "imposes an upwardly variant

sentence, it must explain its reasons for doing so." United States

v. Flores-Nater,

(1st Cir. 2023). And "[t]he

- 15 - court's burden of explanation 'increases in proportion to the

extent of [its] deviation from the guideline range.' As the

variance increases, so too does the district court's burden to

offer a sound justification for the sentence imposed."

(alteration in original) (quoting and citing United States v.

Montero-Montero,

(1st Cir. 2016)).

Here, the sentence imposed was a logical culmination of

the sentencing court's evaluation of the facts of the case, the

need to prevent recidivism, and Calderon-Zayas's history and

characteristics. Further, having already rejected

Calderon-Zayas's arguments that the court failed to adequately

evaluate the § 3553(a) factors and that Rivera-Berríos controls in

relation to procedural reasonableness, we do not consider either

as a basis for deeming the court's rationale implausible under

substantive reasonableness. See United States v. Valle-Colón,

(1st Cir. 2021). Thus, we conclude that the court

provided a plausible rationale to support its imposition of an

upwardly variant sentence.

The sentence is also defensible. Calderon-Zayas has

identified nothing -- nor have we found anything -- that would

lead us to conclude that the 14-month upward variance here is not

within the wide realm of reasonable sentences under the

circumstances of Calderon-Zayas's conviction. See

- 16 - Accordingly, we discern no error as to Calderon-Zayas's § 922(o)

sentence.

B. Revocation Sentence

Calderon-Zayas also challenges the eighteen-month

sentence he received in the supervised release revocation

proceeding. He specifically takes issue with the court's decision

to impose a revocation sentence that runs consecutively to the

§ 922(o) sentence. We review preserved challenges to revocation

sentences for abuse of discretion. See United States v. Wright,

(1st Cir. 2016). Because Calderon-Zayas

specifically raised this challenge before the revocation

sentencing court, his claim is reviewed for abuse of discretion.

See

Calderon-Zayas argues that the court erred "when it did

not consider the sentence previously imposed" in the § 922(o) case

when imposing the revocation sentence.10 However, he has not

10Calderon-Zayas also argues that the court erred in not mentioning that the guidelines are merely advisory. Even assuming this argument is preserved, it has no merit. Calderon-Zayas has not directed us to a single case that requires a sentencing judge to incorporate a statement that the guidelines are advisory into its sentencing order. There is also nothing in the record indicating that the district court wrongly considered the guidelines to be mandatory. See United States v. Gilman,

(1st Cir. 2007) ("While the district court did not state for the record that it was treating the guidelines as advisory, it is clear from the sentencing transcript that everyone recognized that to be true."); cf. United States v. McInnis,

(1st Cir. 2005) ("[T]he court need only consider, not implement, - 17 - explained how the court should have considered the § 922(o)

sentence in crafting the revocation sentence or how that could

have changed the calculus, particularly when the sentencing court

made clear that the basis of the revocation sentence was in the

context of Calderon-Zayas's violation of the conditions of his

supervised release. Importantly, we have explained:

[T]here is no legal impediment to imposing [such] sentences to run consecutively -- actually, a guideline provision envisions precisely such a scenario [by deeming that] any term of imprisonment imposed after the revocation of supervised release shall be ordered to be served consecutively to any sentence of imprisonment that the defendant is serving, regardless of whether the sentence of imprisonment being served resulted from the conduct that is the basis of the revocation of supervised release.

United States v. Tanco-Pizarro,

(1st Cir. 2018)

(cleaned up). Here, "implicit in the court's analysis is its

judgment that [Calderon-Zayas] should get serious prison time for

those flagrant violations,"

of his supervised release and

that the length of the § 922(o) sentence did not warrant a

concurrent revocation sentence. In short, Calderon-Zayas cannot

overcome the presumption of reasonableness owed to the

within-guidelines revocation sentence. See United States v.

the advisory sentence range provided in the guidelines' policy statements.").

- 18 - Ortíz-Mercado,

(1st Cir. 2019). Accordingly, we

find no error as to Calderon-Zayas's revocation sentence.

III. Conclusion

For the foregoing reasons, Calderon-Zayas's sentences

are affirmed.

- 19 -