United States Court of Appeals For the First Circuit

No. 22-1422

UNITED STATES OF AMERICA,

Appellee,

v.

JEAN CARLOS APONTE-COLÓN,

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.

Jessica E. Earl, Assistant Federal Public Defender, with whom Eric Alexander Vos, Federal Public Defender, Rachel Brill, Federal Public Defender, and Franco L. Pérez-Redondo, Assistant Federal Public Defender, Supervisor, Appeals Section, were on brief, for appellant.

Julia M. Meconiates, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

* Of the Seventh Circuit, sitting by designation. June 17, 2024 RIKELMAN, Circuit Judge. Jean Carlos Aponte-Colón

("Aponte") challenges the district court's decision to sentence

him to a term of imprisonment that is substantially longer than

the range recommended by the U.S. Sentencing Guidelines. The

court's sentence followed Aponte's guilty plea to possessing with

intent to distribute marijuana and possessing a firearm in

furtherance of a drug trafficking crime. Under his plea agreement

with the government, Aponte committed to request an upwardly

variant sentence on the firearm charge because of, in his own

words, the "nature and quantity of evidence seized" during his

arrest. Although Aponte requested an aggregate imprisonment

sentence of ninety-four months, and the government requested 100

months, the district court ultimately sentenced him to an even

higher upwardly variant sentence of 120 months. On appeal, Aponte

presents three arguments: (1) the government materially breached

the plea agreement; (2) the district court improperly based its

sentence on Aponte's national origin (or, at least, a reasonable

observer could infer the court did); and (3) the district court's

sentence was procedurally unreasonable. We conclude that the law

and the record here do not support Aponte's arguments and affirm.

- 3 - I. BACKGROUND

A. The Relevant Facts1

In April 2021, Puerto Rico police officers responded to

a report of a single-car accident in Humacao. When the officers

discovered that the car in the accident had been "flagged as

disappeared," they arrested the driver, Aponte. From the car, the

officers seized numerous items, including: four plastic containers

and three zip lock bags, each containing marijuana; twenty-nine

foil decks of heroin; fifty-one pills;2 five ledgers; one address

book; two pocketknives; three cellphones; one digital scale; one

plastic bag with drug paraphernalia; $1,146 in cash; one AK-style

pistol with no visible serial number; 123 rounds of 7.62 caliber

ammunition; two rifle magazines, each with an ammunition capacity

of thirty rounds; two rifle drum magazines; three

extended-capacity rifle magazines; and two .40 caliber pistol

magazines with a total ammunition capacity of twenty-nine rounds.

1 Because Aponte pleaded 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).

2 The total net weight of the marijuana and heroin was, respectively, 9.364 grams and 2.69 grams. The pills were not analyzed.

- 4 - B. The Indictment and Plea Agreement

Less than two weeks after his arrest, a grand jury

indicted Aponte on six counts: possession of a machinegun in

furtherance of a drug trafficking crime in violation of

(c)(1)(B)(ii) (count one); possession of a firearm in

furtherance of a drug trafficking crime in violation of

(c)(1)(A)(i) (count two); possession with intent to

distribute heroin in violation of

(count three);

possession with intent to distribute marijuana in violation of

(count four); possession of a machinegun in violation

of

(o) (count five); and possession of a firearm

and ammunition as a felon in violation of

(g)(1)

(count six). The AK-style pistol seized from Aponte's car formed

the basis of each of the firearm charges, and the indictment

identified it as a machinegun:3 "a firearm modified to shoot

automatically more than [one] shot, without manual reloading, by

a single function of the trigger."

In February 2022, Aponte pleaded guilty to counts two and

four pursuant to a plea agreement with the government. The parties

agreed that the following calculations would apply under the U.S.

3 Specifically, counts one and five described the AK-style pistol as a machinegun. Count two, to which Aponte ultimately pleaded guilty, described the underlying firearm more generally: an "AK-47 style pistol, serial number not visible." Still, Aponte never contested that the firearm underlying count two was a machinegun.

- 5 - Sentencing Guidelines: for count two, the firearm charge, sixty

months of imprisonment;4 and, for count four, the drug charge,

between ten and sixteen months,5 if the court placed Aponte in

criminal history category III.6 They also agreed to request an

upwardly variant, eighty-four-month sentence for the firearm

charge (two years higher than the guideline sentence) and a

sentence within the guideline range for the drug charge.

Specifically, they committed to the following terms in the plea

agreement:

As to Count Two, the parties agree that the parties will request a sentence of imprisonment of 84 months, which will run consecutive to all other counts. As to Count Four, after due consideration of the relevant factors enumerated in

(a), the parties will jointly request a sentence of imprisonment within the applicable Guidelines range at a total offense level of 10 (i.e.,

4 The guideline sentence for possession of a firearm in furtherance of a drug trafficking crime is the statutory minimum sentence: sixty months' imprisonment. See U.S.S.G. § 2K2.4(b) (providing that the guideline sentence for a violation of

(c) "is the minimum term of imprisonment required by statute");

(c)(1)(A)(i).

5 For the drug charge, the parties stipulated to a base offense

level of twelve. Factoring in a two-point reduction for Aponte's acceptance of responsibility, the parties agreed to a total adjusted offense level of ten.

6 The probation officer similarly determined that the guideline sentence for the firearm charge was sixty months and that the guideline range for the drug charge was, based on a total offense level of ten and a criminal history category of III, between ten and sixteen months. The parties did not stipulate as to Aponte's criminal history category and instead listed what the recommended sentencing range would be for each possible category.

- 6 - defendant may request the lower end of the Guidelines, while the government may request the upper end of the Guidelines), when combined with the criminal history category as determined by the [district c]ourt.

The parties agree that any recommendation by either party for a term of imprisonment below or above the stipulated sentence recommendation will constitute a material breach of the Plea Agreement.

The government also agreed to dismiss the remaining counts (one,

three, five, and six) at sentencing.

C. The Parties' Sentencing Memoranda

In May 2022, the parties each filed a sentencing

memorandum with the district court. Consistent with the plea

agreement, both parties requested a sentence of eighty-four

months' imprisonment for the firearm charge (count two). As for

the drug charge (count four), Aponte requested ten months, and the

government requested sixteen months. (Thus, as an aggregate

sentence, Aponte sought ninety-four months, and the government

sought 100 months.) The parties also requested a supervised

release term of five years.

In his memorandum, Aponte described his long struggle

with substance abuse and how it fueled his drug trafficking;

expressed remorse and a desire to rehabilitate himself, reconnect

with his family, and continue his career as a chef; and noted that

he had been sober for more than a year. He then turned to

addressing the parties' plea agreement and explaining his

- 7 - sentencing request. In doing so, he noted: "We are aware of the

evidence seized, which include[d] an AK pistol and a great quantity

of extended magazines and ammunition. However, notwithstanding a

guideline imprisonment range of 60 months as for Count Two (2),

the parties are jointly requesting an upward[ly] varian[t]

sentence of 84 months of imprisonment." The "24-month

enhancement," he explained, "consider[ed] the nature and quantity

of [the] evidence seized." He added that his possession of "an AK

pistol, along with all the ammunition and controlled substances,

highlighted by the fact he was driving under the influence, is not

something he [took] lightly."

The government, for its part, explained that its

"memorandum [was] intended to fulfill [its] co-existing

obligations, under which it must, on the one hand, fulfill the

terms of a plea agreement and, on the other hand, provide all

relevant information to a sentencing court to enable it to impose

a just sentence." In fulfilling such obligations, the government

continued, it "need not 'sugarcoat the facts.'" (Quoting United

States v. Almonte-Núñez,

(1st Cir. 2014).) Turning

to the underlying offense conduct, the government summarized and

(like Aponte) included a photo of some of the evidence seized from

Aponte's car. The government then outlined Aponte's background,

including his mental health history and two prior convictions for

state "theft-related crimes," the relevant guideline calculations,

- 8 - and the "social context in Puerto Rico." In its discussion of the

"community-based factors," the government highlighted "the problem

of gun violence in Puerto Rico" and detailed statistical data that

it alleged demonstrated "a tidal wave of armed violent crime,"

including homicides. For example, the government noted that, in

2018 and 2019, Puerto Rico "had [a] highe[r] proportion of firearm

related homicides than any other state or territory." The

government also explained that, although Puerto Rico's homicide

rate significantly decreased in 2020 (when "Puerto Rico faced

prolonged quarantine"), 2020 "was still a bad year by almost any

metric" and, in 2021, the number of homicides increased by nearly

twenty percent from the prior year. Of its twelve-page memorandum,

the government devoted about four pages to violent crime statistics

in Puerto Rico, although it never alleged that Aponte had engaged

in any violent crime. To sum up Aponte's offense conduct and the

violent crime data, the government explained that "[t]he

circumstances of [Aponte's] offense[s], when viewed through the

violent social context in Puerto Rico, counsel[ed] for a sentence

of imprisonment of 100 months."

The government then addressed how its requested sentence

would serve the "need for adequate deterrence," claiming that

"[h]igher sentences for gun-related offenses have a deterren[t]

effect." (Citing United States v. Martinez,

,

1238 (D.N.M. 2016) ("[R]esearch strongly indicates that increases

- 9 - in sentence length have at least some general deterrent

effect -- especially for criminals facing shorter sentences."),

aff'd,

(10th Cir. 2016).) The government

concluded that "Puerto Rico's chronic and acute problem with

firearms and violence, . . . coupled with [Aponte]'s criminal

history and the nature of the crime (possession of a loaded firearm

in furtherance of a drug trafficking crime), justif[ied] a sentence

of imprisonment of 100 months to deter [him] and others from

committing similar offenses."

Finally, in addressing the "need to protect the public,"

the government cited two studies by the U.S. Sentencing Commission,

one that found firearms offenders recidivate "at a higher rate"

and "more quickly" than non-firearms offenders7 and another that

found "[v]iolent offenders recidivate[] at a higher rate than

non-violent offenders."8 The government concluded that "[t]he fact

7 See U.S. Sent'g Comm'n, Recidivism Among Federal Firearms Offenders 4 (2019), https://perma.cc/YXV9-BA9Z. This study looked at "firearms and non-firearms offenders . . . [who] were originally sentenced between fiscal year 1990 and the first quarter of fiscal year 2006" and "were released from federal custody in calendar year 2005." Id. at 3. Among the types of "firearms offenders" studied were those convicted of "possessing a firearm in furtherance of, a 'crime of violence' or 'drug trafficking crime'" in violation of

(c), the firearm charge to which Aponte pleaded guilty. See

. The study concluded that "[s]ection 924(c) offenders generally recidivated less frequently . . . than other firearms offenders." See

.

8 See U.S. Sent'g Comm'n, Recidivism of Federal Violent Offenders Released in 2010 5 (2022), https://perma.cc/LLB8-RQNZ.

- 10 - that [Aponte] ha[d] been previously incarcerated, the high rate of

recidivism among firearm and violent offenders, and the

circumstances surrounding the commission of the instant offense[s]

support[ed] . . . a sentence of 100 months to protect the

community from future offenses by [him]."

Aponte moved to strike the government's sentencing

memorandum, claiming that the government had breached the parties'

plea agreement. He argued that the government had "only pa[id]

lip service to the agreed imprisonment range, while implicitly

encouraging [the district c]ourt to impose an upward variance with

'social context' arguments" that were rife "with homicide and

murder rates not connected to [him] or his conduct." The district

court denied the motion in a brief order: "DENIED. See U.S. v.

Mojica−Ramos, No. 20−374, 22 WL 374−284 (D.P.R. Feb. 8, 2022)

(Besosa, J.) (No breach of a plea agreement when the government

identifies evidence that it indicates supports the sentence it

endorses.)."

This study evaluated violent offenders who were sentenced between 1990 and 2010, see

, and "released from incarceration or sentenced to a term of probation in 2010,"

. The Commission categorized these offenders as either: (1) "Violent Instant Offenders: Federal offenders who engaged in violent criminal conduct as part of their instant federal offense"; or (2) "Violent Prior Offenders: Federal offenders who had been arrested for a violent offense in their past but were not categorized as violent offenders based on their instant federal offense."

.

- 11 - D. The Sentencing Hearing

On May 9, 2022, Aponte appeared before the district court

for sentencing and reiterated his request for a sentence of

ninety-four months of imprisonment and five years of supervised

release. In advocating for his requested sentence, Aponte

acknowledged that the court "does not take lightly . . . the type

of firearm[ and amount of] ammunition that was seized." And in

light of the firearm, ammunition, and controlled substances

involved, Aponte continued, a ninety-four-month sentence would be

"sufficient." The government, for its part, stated that it stood

"by the recommendation made in the plea agreement" and requested

"a total of 100 months of imprisonment, plus [a] 5-year term of

supervised release." Moving on to the underlying facts of Aponte's

offense conduct, the government noted that, when police searched

Aponte's car after his accident, "they found marijuana, [an]

AK-style pistol without a serial number, ammunition, several

high-capacity magazines, drum magazines, ledgers, pocketknives,

cellphones, drug paraphernalia, and U.S. currency, among other

items." The government then added: "And so after discussions with

counsel and calculating the guidelines, [it] does stand by the

recommendation made in the plea agreement and would respectfully

request a sentence of imprisonment of 100 months for Counts 2 and

4, plus the 5-year term of supervised release . . . ."

- 12 - After Aponte's allocution, the district court calculated

his guideline sentence: for the firearm charge, sixty months of

imprisonment and two to five years of supervised release; and for

the drug charge, based on a category III criminal history,9 ten to

sixteen months of imprisonment and two to three years of supervised

release. The court then noted that it had "considered the other

sentencing factors set forth in Title

(a), the presentence investigation report, counsel's and the

prosecutor's arguments, and Mr. Aponte's" statements.

Additionally, the court noted Aponte's age, education, prior drug

use, and "history of mental health issues." Acknowledging the

parties' requested sentences, the court explained that it had

"identified factors . . . that warrant[ed] a [higher] variant

sentence." The court elaborated as follows:

The Court has considered that Mr. Aponte was in possession of one AK-style assault pistol, 123 rounds of 7.62 ammunition for assault weapons used by NATO country military forces, 2 high-capacity rifle magazines of 30 rounds each, 2 rifle high-capacity drum magazines, . . . 3 additional extended- capacity rifle magazines, controlled substances and paraphernalia associated with distribution of controlled substances, including 3 Ziploc bags containing marijuana, 4 plastic oval containers containing marijuana, 29 red foil decks of heroin, 51 pills, 5 ledgers, 1 brown address book, 2 pocket knives, 1 black Samsung Galaxy

9 The district court placed Aponte in criminal history category III based on his two prior convictions. Aponte does not challenge this determination on appeal.

- 13 - cellphone, 1 BLU cellphone, 1 Azumi cellphone, 1 Apple iPad, 1 digital scale, United States currency in the amount of $1,146, 1 bill of Columbian currency of 20 pesos.

Concluding that "neither sentence recommended

reflect[ed] the seriousness of the offenses, promote[d] respect

for the law, protect[ed] the public from additional crimes by Mr.

Aponte, . . . [or] address[ed] the issues of deterrence and

punishment," the court sentenced Aponte to ninety-six months of

imprisonment for the firearm charge and twenty-four months for the

drug charge, to be served consecutively, for an aggregate sentence

of 120 months. With respect to supervised release, the court

sentenced Aponte to a term of five years for the firearm charge

and three years for the drug charge, to be served concurrently.

After the court issued its sentence, Aponte objected "to

the substantive and procedural unreasonableness of the sentence."

He reiterated that "the guideline range in this case" was an

aggregate "70 to 76 months" and that, based on the guidelines and

"the evidence that was seized, the ammunition and the drugs, the

parties agreed already [to] an upward variance" of two years above

the guideline sentence on the firearm charge. The court's addition

of another year on the firearm charge and eight additional months

on the drug charge, amounting to a total of about four years above

the aggregate guideline range, Aponte continued, constituted "a

drastic enhancement" that was unsupported by the record.

- 14 - In response, the court stated that its sentence

demonstrated its disagreement with the parties' plea agreement,

adding that it had also "taken into consideration the serious and

acute problem[] of gun violence in Puerto Rico." The court

continued:

The Sentencing Commission's statistics bear that out. Higher sentences for gun-related offenses do have a deterrent effect. Increased sentences for gun-related offenses decrease gun violence. The Sentencing Commission statistics demonstrate that firearms offenders, of which Mr. Aponte is one, recidivate at a higher rate and more quickly than non-firearms offenders in every criminal history category. This high rate of recidivism among firearms offenders is another reason . . . [that] supports the imposition of . . . the sentence . . . imposed to protect the community from additional offenses by Mr. Aponte.

At the end of the hearing, and as the parties

contemplated in the plea agreement, the court dismissed the

remaining counts of the indictment. This timely appeal followed.

II. DISCUSSION

Aponte presents three arguments on appeal: (1) the

government materially breached the plea agreement by supporting

its sentencing recommendation with unreliable, irrelevant

information about the pervasiveness of firearm violence in Puerto

Rico; (2) the district court based its sentencing decision on

Aponte's national origin (or, at least, a reasonable observer could

infer the court did) and therefore violated proper sentencing

- 15 - procedure and Aponte's constitutional rights; and (3) the court's

upward variance is procedurally unreasonable because the court

failed to adequately "explain and individualize its sentence" and

based the sentence on "unreliable assertions." We address each of

these claims in turn.

A. Whether the Government Breached the Plea Agreement

Aponte's first argument is that the government paid lip

service to the plea agreement by requesting a 100-month aggregate

sentence but then methodically undermined that recommendation in

its sentencing memorandum. His breach argument focuses on the

government's discussion of violent crime statistics, including

those related to homicides, even though Aponte's charged conduct

did not involve any violence, nor did his criminal history include

a conviction for any violent crime. As part of this argument,

Aponte faults the government for "suppl[ying] the [district] court

with material [such as firearm homicide statistics] that the court

regularly uses to exceed prescribed guidelines ranges and parties'

stated recommendations."

We briefly address the applicable standard of review

before turning to the merits of Aponte's claim. When a defendant

has preserved the claim that the government breached a plea

agreement, our review is de novo. United States v. Davis,

(1st Cir. 2019). But when a defendant fails to raise

such a claim at the sentencing hearing, our review is for plain

- 16 - error.

Here, Aponte argued in his motion to strike the

government's sentencing memorandum that the government had

breached the plea agreement, and the district court considered and

denied that motion prior to the sentencing hearing. Although

Aponte did not renew his objection at the hearing itself, the

parties agree that de novo review applies. We assume in Aponte's

favor that his claim is subject to de novo review but, for the

reasons below, conclude that the government did not materially

breach the plea agreement.

We begin by reviewing the principles that guide our

evaluation of the terms and performance of a plea agreement.

Because a defendant waives his "fundamental constitutional rights"

by entering into a plea agreement with a prosecutor, we hold the

prosecutor "to 'the most meticulous standards of both promise and

performance.'" United States v. Lessard,

(1st

Cir. 2022) (quoting United States v. Clark,

(1st

Cir. 1995)). The prosecutor cannot satisfy such standards merely

by paying lip service to, or technically complying with, the plea

agreement. United States v. Ubiles-Rosario,

(1st Cir. 2017). "In addition to entitlement to the government's

technical compliance with the agreement, [a defendant] is entitled

to the 'benefit of the bargain' and the 'good faith' of the

prosecutor." United States v. Brown,

(1st Cir.

2022) (quoting Ubiles-Rosario,

). Thus, "[w]e

- 17 - prohibit not only explicit repudiation of the government's

[plea-bargain] assurances but also end-runs around those

assurances." United States v. Cruz–Vázquez,

(1st Cir. 2016). And because there is "'[n]o magic formula' for

assessing whether a prosecutor has complied with a sentencing

recommendation in a plea agreement[,] . . . we examine the

totality of the circumstances to determine whether 'the

prosecutor's overall conduct [was] . . . reasonably consistent

with making such a recommendation, rather than the reverse.'"

Ubiles-Rosario,

(first alteration in original)

(quoting United States v. Gonczy,

(1st Cir. 2004)).

After considering the totality of the circumstances,

including the terms of the plea agreement here, we find no breach.

Recall that the parties agreed to request an upwardly variant

sentence on the firearm charge (seven years as compared to the

five-year guideline sentence) and, if the court assigned Aponte to

criminal history category III, between ten and sixteen months on

the drug charge. The government in fact requested, in both its

sentencing memorandum (several times) and at the sentencing

hearing (twice), a sentence of seven years' imprisonment on the

firearm charge and sixteen months' imprisonment on the drug charge.

The record below demonstrates that "[t]he government did not lament

the plea agreement's terms or otherwise suggest that it would seek

a different sentence if free to do so." United States v.

- 18 - Irizarry-Rosario,

(1st Cir. 2018); cf. United

States v. Canada,

(1st Cir. 1992) (finding breach

of plea agreement where prosecutor's "references to the agreement

were grudging and apologetic").

Nor did the government "gratuitously offer[] added

detail garbed in implicit advocacy." United States v.

Miranda-Martinez,

(1st Cir. 2015); cf. Gonczy,

357 F.3d at 53–54 (finding breach of plea agreement where

prosecutor first recommended sentence in accordance with the

agreement but then stated "defendant was the brains behind [the]

operation," "his conduct ruined many lives," he "basically laughed

in the face of law enforcement," and he "at a minimum deserves

what the guidelines provide for and those are his just des[s]erts"

(internal quotation marks omitted)). The government in no way

denigrated Aponte in its memorandum when it recounted his personal

background and criminal history. It described in neutral terms

his "good upbringing," struggle with substance abuse, and two

previous state convictions for "theft-related crimes," citing to

the presentence investigation report for further details on those

convictions.

Further, because the parties' agreement envisioned that

both sides would advocate for a substantial upward variance on the

firearm charge, the government "was free to offer reasons

supporting its recommendation." Ubiles-Rosario,

- 19 - (quoting Cruz-Vázquez,

). Additionally, the plea

agreement did not "limit the information that the prosecutor

[could] convey." Miranda-Martinez,

. Thus, the

government was free to discuss "the characteristics of the

community in which the crime[s] took place," which we have

permitted district courts to consider "when weighing the offense's

seriousness and the need for deterrence." United States v.

Zapata-Vázquez,

(1st Cir. 2015); see United States

v. Rivera–González,

(1st Cir. 2015) (finding

"the high incidence of violent crime in Puerto Rico" to be an

appropriate consideration at sentencing).

Aponte nevertheless objects that the government's

decision to devote a third of its sentencing memorandum to

statistical data on violent crime in Puerto Rico was an end-run

around the plea agreement and an attempt to induce the district

court to impose an even higher sentence. As Aponte correctly

points out, his offense conduct in this case did not involve a

violent crime, much less murder, and he had no previous convictions

for violent crimes. But, critically for the outcome of this case,

the government never suggested to the contrary before the district

court. Instead, the government explained in its sentencing

memorandum that the firearm violence in Puerto Rico, "when coupled

with [Aponte]'s criminal history and the nature of the crime

(possession of a loaded firearm in furtherance of a drug

- 20 - trafficking crime), justif[ied] a sentence of imprisonment of 100

months to deter [him] and others from committing similar offenses."

We find no support in this statement, or others made by the

government, for Aponte's suggestion that the government implicitly

urged the court to impose a higher variance than that contemplated

by the parties.10 Put differently, the mere discussion by the

government of gun violence given the facts here, which involved

Aponte's driving under the influence with a loaded gun and an

agreement by the parties to advocate for an upwardly variant

sentence, was not enough to breach the plea agreement.11

Aponte also contends that the government "intense[ly]

focus[ed] on [his] arrest and every last piece of contraband

seized," "call[ing] special attention to the ugliest aspects of

[his] past to justify what is, in these circumstances, a routine

recommendation." (Quoting United States v. Heredia,

(9th Cir. 2014).) Again, given the facts here, we disagree.

10Aponte also argues that the government-cited statistics are of questionable "reliability and methodology" and "misleading, as they compare Puerto Rico, a territory with a much higher poverty rate than any state, to the United States as a whole." But these assertions are not enough to establish a breach of the plea agreement, given that Aponte does not support them with any authority.

11To be sure, a district court may not "focus[] 'too much on the community and too little on the individual' in imposing a sentence." Rivera-González,

. But the government is entitled to bring such factors to the court's attention to help inform its sentencing decision.

- 21 - To start, the parties' agreement that the sheer amount of

contraband in this case warranted an upward variance on the firearm

charge undermines Aponte's characterization of their sentencing

recommendations as "routine." Additionally, the government

dedicated two pages, out of its twelve-page sentencing memorandum,

to note the details of Aponte's arrest and some of the evidence

seized. The government described the evidence in a neutral fashion

without any editorializing. Moreover, the parties' stipulation of

facts attached to the plea agreement, as well as the presentence

investigation report, listed each piece of evidence seized. The

government therefore did not call any "special attention" to the

circumstances of Aponte's offenses. Regardless, the government

was entitled to describe the evidence seized, which was undisputed,

in justifying its request for an upward variance.

Finally, we address and reject Aponte's argument that

his case is just like United States v. Mojica-Ramos, Nos. 22-1204,

22-1205,

(1st Cir. June 6, 2024).12 In that case,

Aponte suggests, the government submitted a similar sentencing

memorandum to secure an upwardly variant sentence (and therefore

committed a similar breach of a plea agreement).

12That appeal was still pending when Aponte prepared his briefing, but he nevertheless argued that the government there breached the plea agreement in a similar manner to how it purportedly breached the plea agreement in his case.

- 22 - We find the circumstances in Mojica-Ramos to be

distinguishable. Importantly, unlike here, the government in

Mojica-Ramos had agreed to recommend a within-the-guidelines

sentence, and thus we analyzed whether its arguments to the

district court were consistent with its promise to advocate for a

mine-run sentence. See

. We concluded that they were

not and that the government had "made several serious and

unacceptable missteps" in its arguments to the court.

.

First, in its sentencing memorandum, the government argued "that

the offense and Mojica's dangerousness 'should be considered

exceptional'" and therefore affirmatively suggested that Mojica's

case fell "outside the guidelines' heartland" and warranted

"greater punishment than it had promised" in the plea agreement.

. Similarly, at "the sentencing hearing, the government

referred to Mojica's conduct as 'a big part of the problem' of

violent crime in Puerto Rico,"

, even though Mojica's

offense conduct did not involve a violent crime, and he had not

been charged with a violent crime, see

. Second, "the

government presented the court with approximately 250 photos of

firearms and drugs and an unanalyzed video of an individual

'resembling' Mojica to offer 'additional evidence' of his 'likely'

participation in 'other criminal behavior beyond the machinegun

count charged,'"

, even though it failed to provide any

evidence that the photos or video actually depicted criminal

- 23 - conduct, much less by Mojica, see

. Here, by contrast,

the plea agreement permitted the government to treat Aponte's

firearm offense as falling outside the guidelines' heartland. And

although the government generally discussed the prevalence of

firearm violence in Puerto Rico, it did not insinuate that Aponte's

conduct was itself violent or played a "big part" in such violence.

Moreover, the government introduced a single photo of the evidence

seized from Aponte's car and never suggested that he participated

in uncharged, unproven criminal conduct.

In sum, we conclude that Aponte received the benefit of

his bargain with the government and that "the government was

permitted to marshal the facts and factors that, in its view,

warranted the recommended sentence." Ubiles-Rosario,

. We therefore discern no breach of the plea agreement based

on the record before us.

B. Whether the District Court Based Its Sentence on Aponte's National Origin

Aponte's second argument on appeal is that the court's

focus on "the Puerto Rico community amounted to a sentence based

on an invidious factor," in violation of his constitutional rights

and proper sentencing procedure, "or at the very least leaves the

appearance of being based on an improper factor." Although he

further suggests that "[t]he court's sentence would leave a

reasonable observer with the impression that it was based

- 24 - on . . . [his] membership in Puerto Rico society, . . . ethnicity,

national origin, race, and economic status," Aponte develops an

argument only on his "national origin" as the "invidious" or

"improper" factor at issue. Thus, we focus our analysis on whether

the district court based its sentence on Aponte's national origin.

Before we proceed to the merits of this claim, we note

that the parties dispute the applicable standard of review. But

we do not dwell on this dispute because we conclude that Aponte's

claim fails even if we grant him the benefit of de novo review.

See United States v. Albaadani,

(6th Cir. 2017)

("Whether a district court improperly considers a defendant's

national origin is a question of law, and thus this aspect of a

sentencing is reviewed de novo." (quoting United States v. Carreto,

(2d Cir. 2009))); see also United States v.

Madsen,

, 719 n.2 (1st Cir. 2016) ("bypass[ing]"

government's argument "that some aspects of the defendant's claims

of sentencing error should be reviewed only for plain

error . . . because, regardless of the standard of review, the

claims are bereft of merit").

Because an individual's national origin is not a

relevant sentencing factor, a district court may not base its

sentencing decision on it. See United States v. Heindenstrom,

(1st Cir. 2019); see also U.S.S.G. § 5H1.10 (providing

that race, sex, national origin, creed, religion, and

- 25 - socioeconomic status "are not relevant" sentencing factors);

United States v. Onwuemene,

(8th Cir. 1991)

("[S]entencing an offender on the basis of factors such as race,

national origin, or alienage violates the Constitution."). And

"even the appearance that the sentence reflects a

defendant's . . . nationality will ordinarily require a remand for

resentencing." United States v. Kaba,

(2d Cir.

2007) (citation omitted); see Albaadani,

(explaining that "[p]roof of actual bias . . . is not necessary"

to warrant remand for resentencing). Here, Aponte argues that the

court relied on his nationality when crafting his sentence, or at

least a reasonable observer could infer that it did, because the

court "assured the parties that it had 'taken into consideration

the serious and acute problems of gun violence in Puerto Rico' in

imposing the upward variance." Aponte also notes (although the

court never did) that he "is a Hispanic man born in Puerto Rico"

who "has lived his entire life in Puerto Rico and only has limited

English ability as a native Spanish speaker."

We find no support in the record for Aponte's assertion

that a reasonable observer could conclude that the district court

sentenced him based on his national origin. The court never

referred to, or even alluded to, Aponte's national origin at

sentencing. Cf. Onwuemene,

(concluding that

defendant's nationality was a factor in sentencing because the

- 26 - court had stated: "The other thing that . . . warrants imposition

at the high end of the guideline range: You are not a citizen of

this country. This country was good enough to allow you to come

in here . . . and you repay that kindness by committing a crime

like this."). Further, there is simply no indication that the

court's sentence was impacted by where Aponte was born or that the

court would have imposed a shorter sentence on an individual born

outside of Puerto Rico who had committed the same conduct in Puerto

Rico. Cf. United States v. Trujillo-Castillon,

(7th Cir. 2012) ("By lumping the defendant in with the Mariel

people and expressly contrasting the values held by Americans with

people, like the defendant, 'who come[ ] from Cuba,' the court

arguably made [his] national origin a factor at sentencing." (first

alteration in original)). And, as we noted above, under our

precedent a court "may consider community-based and geographic

factors" because "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); see United States v.

Millán-Román,

(1st Cir. 2017) ("[D]istrict courts

may take into account not only the need for individual deterrence,

but also the need for community deterrence within the defendant's

particular community."). Thus, based on "[a] fair reading of the

entire [sentencing] transcript," we conclude that the court's

- 27 - reference to such community-based factors does not support an

inference that it relied on Aponte's nationality. United States

v. Munoz,

(4th Cir. 1992).

C. Whether the District Court's Sentence Was Procedurally Unreasonable

Aponte's final argument is that the district court's

120-month sentence was procedurally unreasonable. His claim of

procedural error rests on two premises: (1) the district court

failed to adequately explain its decision to impose "a colossal

120-month term" that "so drastically shot past both the applicable

range and the parties' recommendations"; and (2) the district court

based its sentencing decision on unreliable statistical data.

1. Standard of Review

We typically review a preserved challenge to the

procedural reasonableness of a sentence under "a multifaceted

abuse-of-discretion standard."13 United States v. Sierra-Jiménez,

(1st Cir. 2024) (citation omitted). Under this

umbrella 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,

, 41

13Although Aponte suggests in a single heading of his opening brief that he challenges his sentence as "procedurally and substantively infirm," his arguments address only the procedural reasonableness of his sentence. We therefore confine our review to the issue of procedural reasonableness.

- 28 - (1st Cir. 2022) (quoting United States v. Rivera-Morales,

(1st Cir. 2020)).

Aponte suggests that this standard applies here, as he

preserved his claim of procedural error. To be sure, he objected

below "to the substantive and procedural unreasonableness of the

sentence," explaining at length that, although the district court

had correctly calculated the guideline range, "the

record . . . [did] not support such a drastic enhancement for this

case" because the parties' recommended sentences already had

accounted for the nature and amount of the contraband seized.

These statements are sufficient to preserve his procedural claim

that the court inadequately justified its upward variance. See

United States v. Perez-Delgado,

(1st Cir. 2024)

(explaining that "'our preservation policy' . . . simply requires

'putting the district court on notice of the error'" and therefore

a defendant need not frame an objection "with exquisite precision"

to preserve it (citation omitted)); see also United States v.

Melendez-Hiraldo,

(1st Cir. 2023) (concluding that

defendant preserved inadequate-explanation claim when his counsel

argued below that "[t]here [were] no proper reasons for the

excessively upward variance" and that, despite "the proper

guideline for the charge [being] 120 months," "[t]he parties came

up with an already-included variance"). Indeed, the record

supports the conclusion that the district court was put on notice

- 29 - of Aponte's inadequate-explanation claim because it provided

additional explanation for its sentence in response to Aponte's

objection. We therefore review Aponte's claim of inadequate

justification for an abuse of discretion.

However, there is nothing in the record suggesting that

Aponte signaled to the district court that he was also challenging

the sentence because it was based on unreliable statistical

information. Our review of this specific procedural challenge is

therefore for plain error.14 See United States v. Colón-De Jesús,

, 25 (1st Cir. 2023) (explaining that a general

procedural reasonableness objection was insufficient "to give the

district court notice of the specific issue raised on appeal" and

therefore plain error review applied to that issue (citation

omitted)). And because Aponte "fails to even mention plain error,

let alone argue for its application here," he "definitively waives

th[is] argument[]." United States v. Morales-Veléz,

(1st Cir. 2024) (citation omitted). We therefore limit

Although the government failed to request plain error 14

review for this claim, we decline to review the issue for abuse of discretion. See United States v. Figueroa-Ocasio,

(1st Cir. 2015) (explaining that, "[w]hen the government fails to request plain error review," we may "review the claim under the standard of review that is applied when the issue is properly preserved below" but, "even if the [g]overnment [makes] an affirmative concession as to the standard of review, we [are] not . . . bound by it" (first alteration in original)).

- 30 - the remainder of our analysis to the adequacy of the court's

justification for the variant sentence it imposed.

2. The Adequacy of the Court's Explanation

Aponte argues that "the district court failed to

articulate an adequate basis . . . for deviating so significantly"

from the parties' sentencing recommendations.15 He contends that

the district court's concerns about the parties' recommendations

(i.e., that they did not "reflect[] the seriousness of the

offenses, promote[] respect for the law, protect[] the public from

additional crimes by Mr. Aponte, . . . [or] address the issues of

deterrence and punishment") were "generic" and "[u]nmoored from

any individual characteristics of" Aponte or his offenses.

(Quoting United States v. Rivera-Berríos,

(1st

Cir. 2020).) Additionally, he argues that the court's statement

that it had "considered" the evidence seized was insufficient

because the court did not explain "which specific facts of the

case motivated its decision and why those facts led to its

decision." (Quoting United States v. Muñoz-Fontanez, 61 F.4th

Aponte asserts that the court "catapulted past the 15

aggregate 70-to-76-month guideline range" by about four years. Although the parties agreed to recommend an upwardly variant sentence between ninety-four months and 100 months, we must compare the court's upwardly variant sentence to the guideline range of seventy to seventy-six months (i.e., sixty months for the firearm charge and ten to sixteen months for the drug charge). See Morales-Veléz,

("[T]he starting point for a court's sentencing determination is the guideline range, not the parties' recommendations." (citation omitted)).

- 31 - 212, 215 (1st Cir. 2023).) Finally, Aponte contends that "the

bullets and magazines recovered" and the type and quantity of the

drugs seized were consistent with a mine-run gun-possession

offense and drug offense, and, therefore, the record does not

permit an inference as to the court's reasoning for the variance.

Before we consider the merits of Aponte's procedural

unreasonableness claim, we first lay out some guiding principles.

It is well established that a sentencing court must "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 . . . case." United States v. Colón-Cordero,

(1st Cir. 2024) (quoting Gall v. United States,

(2007)). And "[w]hen 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. United States v.

Reyes-Correa,

(1st Cir. 2023). The more a court

deviates from the guideline range, "the more compelling

- 32 - the . . . 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)).16

To start, the record demonstrates that the court

conducted an individualized assessment of Aponte's case.

Acknowledging the parties' requested sentences, the court

explicitly stated that it had "identified factors . . . that

warrant[ed] a [higher] variant sentence," including Aponte's

possession of an "AK-style assault pistol, 123 rounds of 7.62

ammunition for assault weapons used by NATO country military

forces," multiple high-capacity magazines, three bags and four

containers of marijuana, and twenty-nine foil decks of heroin.

Although the court could have provided more explanation about why

these facts led to the particular upward variance it imposed, the

court's attention to such details indicates that it "paid heed to

the particulars of [Aponte's] case." Rivera-González, 776 F.3d at

The district court here "offered an undifferentiated 16

explanation for its imposition of the aggregate [120-month] sentence, and it did not explicitly state what factors contributed most directly to the imposition of each of the component sentences." United States v. Ortiz-Pérez,

(1st Cir. 2022). But, as we explain momentarily, "we can fairly infer from the record the factor[s] that drove the court's decision to impose" an upward variance as to each of the two charges, given the parties' arguments below.

- 33 - 50; see Flores-Machicote,

(noting that court "also

paid particular heed both to the fact that the defendant's weapon

was 'a nine millimeter, semi-automatic pistol with a high capacity

magazine,' and to the defendant's likely recidivism").

Further, it was within the court's discretion to

consider the type of firearm (a machinegun), significant amount of

ammunition, and multiple high-capacity magazines that Aponte

possessed as aggravating factors supporting an upward variance for

the firearm charge. Recall that Aponte had in his car not only an

AK-style pistol but also, among other items: 123 rounds of 7.62

caliber ammunition; multiple high-capacity rifle magazines; and

two .40 caliber pistol magazines. The relevant guideline provision

here, U.S.S.G. § 2K2.4(b), is triggered by the use or carrying of

a firearm "in relation to any . . . drug trafficking crime" or the

possession of a firearm "in furtherance of any such crime."

(c)(1)(A)(i); see U.S.S.G. § 2K2.4(b); see also

Melendez-Hiraldo,

(noting that section 2K2.4(b)

"sets the sentence for defendants 'convicted of violating section

924(c)' as 'the minimum term of imprisonment required by statute'

regardless of the severity of the underlying crime or the

individual characteristics of the defendant" (quoting U.S.S.G.

§ 2K2.4(b))). Because this guideline only accounts for a

"firearm," Aponte's possession of not only a machinegun but also

a large cache of ammunition and high-capacity magazines supported

- 34 - an upward variance. See Morales-Veléz,

(concluding that section 2K2.4(b) did not account for defendant's

possession of a machinegun and 125 rounds of ammunition and

therefore district court did not err in imposing upward variance

based on such factors); cf. United States v. Rivera-Santiago,

(1st Cir. 2019) (upholding eleven-month upward

variance imposed under section 2K2.1 on defendant who possessed

two empty, large-capacity magazines and 127 rounds of ammunition,

which were "factors that differentiate[d] [his] offense from the

'run-of-the-mill' felon-in-possession offense").

Relying on Rivera-Berríos and United States v.

García-Pérez, Aponte suggests that the high-capacity magazines and

the quantity of the ammunition recovered from his car were

consistent with a mine-run gun-possession offense and thus

insufficient to justify an upward variance. See Rivera-Berríos,

; United States v. García-Pérez,

(1st Cir. 2021). In making this argument, Aponte contradicts

his own position below. Notably, in his sentencing memorandum to

the district court, Aponte recognized that "the nature and quantity

of [the] evidence seized," including a "great quantity of extended

magazines and ammunition," justified an upward variance. At the

sentencing hearing, he again acknowledged "the type of

firearm[ and] ammunition that was seized" as reasons for an

above-the-guideline sentence on the firearm charge. Aponte's

- 35 - concession below was correct. Unlike in Rivera-Berríos, where the

defendant possessed two eighteen-round magazines, or García-Pérez,

where the defendant "had one more magazine and twenty-eight more

rounds than the defendant in Rivera-Berríos," Aponte possessed a

substantial cache of ammunition and multiple high-capacity

magazines. García-Pérez,

; see Rivera-Berríos,

. There was no abuse of discretion by the district

court in concluding, on this record, that this was not a mine-run

case.

Additionally, we can infer the court's reasoning for the

upward variance on the drug charge from the sentencing record.

Aponte recognized in his sentencing memorandum the "gravity" of

his possession of "an AK Pistol, along with all the ammunition and

controlled substances." (Emphases added.) He also acknowledged

that he "was under the influence of [several] drugs" at the time

of his arrest and that he "fell asleep while driving," which caused

the car accident. At the sentencing hearing, Aponte similarly

addressed "the controlled substances that were seized." The court

then highlighted the variety of drugs and drug paraphernalia seized

as among those "factors . . . that warrant[ed] a variant sentence."

From all this, we can deduce that the district court reasoned that

it was Aponte's driving under the influence while possessing a

loaded firearm and large cache of ammunition that took his drug

offense outside the heartland of the relevant sentencing

- 36 - guideline, U.S.S.G. § 2D1.1. See United States v. Ortiz-Pérez,

(1st Cir. 2022) (explaining that district court's

reasoning for a variance can be gleaned "by fair inference from

the sentencing record"). The district court was entitled to rely

on these factors to support an upward variance for the drug charge.

Further, the decisions that Aponte highlights in his

Rule 28(j) letter to this court are inapposite. See Colón-Cordero,

; United States v. Flores-González,

(1st

Cir. 2023) (en banc). First, Aponte suggests that Colón-Cordero

and this case share "the same error: the court's mere listing of

the items seized and basic biographical information about [him]."

But, as he also recognizes, the district court in Colón-Cordero

merely listed the facts without placing "'emphasis on any

particular circumstance,' and thus it [was] 'impossible to tell'

what the court's rationale was for landing on [a] 9-month upward

variance."

(quoting Muñoz-Fontanez, 61 F.4th at

214). Here, by contrast, the district court explained that it had

"identified factors . . . that warrant[ed] a [higher] variant

sentence" and then highlighted certain items seized from Aponte's

car, including an "AK-style assault pistol, 123 rounds of 7.62

ammunition for assault weapons used by NATO country military

forces," multiple high-capacity magazines, and a variety of drugs

and drug paraphernalia. And, with regard to the firearm charge,

Aponte himself requested an upward variance based on the "nature

- 37 - and quantity of evidence seized," highlighting specifically, in

his own words, the "AK pistol and a great quantity of extended

magazines and ammunition." Although he objects to the district

court's determination that an even greater variance was justified,

we can nevertheless infer that the district court's higher sentence

was based on the very same evidence that it had just described,

much of which Aponte conceded justified an upward variance on the

firearm charge.

Next, Aponte emphasizes that our en banc decision in

Flores-González made clear that certain of our prior decisions,

including Rivera-Berríos and United States v.

Carrasquillo-Sánchez,

(1st Cir. 2021), "remain

controlling circuit precedent." Flores-González, 86 F.4th at 413.

That much is true. As in Rivera-Berríos and Carrasquillo-Sánchez,

Aponte continues, the district court here based its sentencing

decision on community-centered concerns (i.e., the "acute

problem[] of gun violence in Puerto Rico") "without tying that

community-centered concern in any way to the case or

to . . . Aponte's circumstances." But the circumstances in

Rivera-Berríos and Carrasquillo-Sánchez are distinct from those

before us here. In Rivera-Berríos, the court imposed a variance

based solely on "the mere fact that the offense of conviction

involved a machine gun," even though that factor "was already fully

accounted for in the guideline [section 2K2.1(a)(4)(B)] calculus"

- 38 - and there was no basis in the record "for giving that factor extra

weight."

. Additionally, the court highlighted

Puerto Rico's crime trends, but its concerns were "[u]nmoored from

any individual characteristics of either the offender or the

offense of conviction."

. Because the court did not

identify (and the record did not reveal) any characteristic that

removed the case "from the mine-run," we vacated the defendant's

sentence and remanded for resentencing.

. Similarly,

in Carrasquillo-Sánchez, "the driving force behind the upward

variance" was a factor already accounted for in the applicable

guideline, the type of firearm possessed, and the "[c]ourt

considered the high incidence of gun violence in Puerto Rico

'unmoored from any individual characteristics.'" 9 F.4th at 61

(citation omitted). Thus, as in Rivera-Berríos, we vacated the

defendant's conviction and remanded for resentencing. See id. at

63.

Unlike in Rivera-Berríos and Carrasquillo-Sánchez, the

district court here did not base its sentencing decision on a

factor that already was accounted for in the guidelines. See

U.S.S.G. § 2K2.4(b); United States v. Valle-Colón,

(1st Cir. 2021); Melendez-Hiraldo,

. Additionally,

the record does not support a finding that the district court based

its sentencing decision entirely on community-centered concerns,

untethered from Aponte's offenses and characteristics. Rather,

- 39 - "the district court sentenced [Aponte] in light of the totality of

a myriad of relevant circumstances," and "[a]lthough

community-based considerations were a part of this mix, there is

no compelling indication that the court gave undue weight to them."

Rivera-González,

; see United States v.

Bermúdez-Meléndez,

(1st Cir. 2016) (rejecting

appellant's argument that sentencing court improperly focused on

community-based considerations because, "though it decried the

pervasive problems associated with violent crimes in Puerto Rico,

it did so only glancingly -- and then, only in connection with the

need for deterrence").

In sum, because the court identified several factors

behind its decision to impose an upwardly variant sentence of 120

months, see Bermúdez-Meléndez,

, and we can

"infer[]" additional reasons "from the sentencing record,"

Ortiz-Pérez,

, we reject Aponte's procedural

reasonableness claim.

III. CONCLUSION

For all these reasons, we affirm the district court's

sentence and judgment.

- 40 -