Not for Publication in West's Federal Reporter

United States Court of Appeals For the First Circuit No. 20-2131

UNITED STATES,

Appellee,

v.

DONOVAN J. RIVERA-MEDINA,

Defendant, Appellant.

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

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

Before

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

Daniel N. Marx, with whom Fick & Marx LLP was on brief, for appellant.

Mahogane D. Reed, with whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Gregory B. Conner, Assistant United States Attorney, were on brief, for appellee.

June 20, 2024

* Of the United States Court of Appeals for the Seventh Circuit, sitting by designation. THOMPSON, Circuit Judge. Donovan J. Rivera-Medina

appeals as procedurally and substantively unreasonable his 108-

month-long prison sentence for possession of a machine gun, in

violation of

(o), and possession with intent to

distribute a controlled substance (marijuana), in violation of

(a)(1), (b)(1)(D). For reasons we will explain in

fairly short order (writing primarily for the parties as we do

so), we must affirm the district court's pronounced sentence.

A little context to get us started, gleaned "from the

plea agreement, the change-of-plea colloquy, the undisputed

portions of the presentence investigation report ('PSR'), and the

transcript of the disposition hearing" because Rivera-Medina's

appeal follows a guilty plea. United States v. Rivera-Santiago,

(1st Cir. 2019) (quoting United States v. O'Brien,

(1st Cir. 2017)). Indeed, Rivera-Medina entered

into an agreement in which he pleaded guilty to a two-count

information for possession of a machine gun and possession with

intent to distribute marijuana while on pretrial release, in

violation of

. The agreement provided a joint

sentencing recommendation of 96 months' imprisonment -- an upward

variance from the advisory range of 57 to 71 months' imprisonment.

That 96-month computation (78 months for the firearms charge; 18

- 2 - for the marijuana charge) was based in part on aggravating factors

associated with Rivera-Medina's offenses.1

At sentencing, the court noted some of Rivera-Medina's

personal characteristics (then 24 years of age; eleventh grade

education; sporadic employment as a barber; history of marijuana

and cocaine use), the court's general concerns about "highly

dangerous" machine guns, and the aggravating factors in play. The

court then agreed with the parties that there was a need for an

upward variance but concluded even more of a variance was necessary

-- it thus tacked 12 months onto the parties' 96-month

recommendation and pronounced a 108-month term of immurement (90

months on the firearms charge; 18 on the marijuana charge).

Rivera-Medina objected to the sentence's procedural and

substantive reasonableness, arguing the agreed-to "96 months

already consider[ed] everything," including Rivera-Medina's

uncharged conduct and all the other considerations the court had

identified. The court demurred: "Well, I just want to tell you

1 The undisputed factors in play here, some of which also help tell the story of how Rivera-Medina got to this point, include that he: dodged a more serious charge of possession of a machine gun in furtherance of a drug-trafficking crime (which carries a 30-year mandatory minimum sentence,

(c)(1)(B)(ii)); aimed his firearm (a modified Glock pistol) at officers who were attempting to execute an arrest warrant for his brother; fled the scene and threw his machine gun away as he did so; possessed not just a loaded machine gun but three magazines (two of which were high-capacity) and 41 rounds of ammunition; and committed the offense while on pretrial release for another offense involving a machine gun.

- 3 - that it doesn't consider everything because, as I indicated, he

aimed his weapon at a police officer when his brother was being

arrested. He also had two high-capacity magazines, a third

magazine, and 41 rounds of ammunition." This timely appeal

followed.

The reviewing parameters are familiar. Preserved claims

of sentencing error are examined for abuse of discretion, with

factual findings scrutinized for clear error and legal conclusions

reviewed de novo. United States v. Rivera-Berríos,

(1st Cir. 2020). When a defendant fails to preserve a claim

of error, however, he is stuck with plain-error review. See, e.g.,

United States v. Montero-Montero,

(1st Cir. 2016).

And "we first examine claims of procedural error and inquire into

the substantive reasonableness of a sentence only after it has

passed procedural muster." Rivera-Berríos,

.

Procedural errors include "failing to calculate (or

improperly calculating) the [g]uidelines range, treating the

[g]uidelines as mandatory, failing to consider the [18 U.S.C.]

§ 3553(a) factors, selecting a sentence based on clearly erroneous

facts, or failing to adequately explain the chosen sentence --

including an explanation for any deviation from the [g]uidelines

range." Gall v. United States,

(2007).

With all of this in mind, we turn to Rivera-Medina's

three procedural claims, which can be broadly summarized like this:

- 4 - the court failed to adequately explain its upward variance; it

failed to weigh whether he knowingly pointed a gun at police

officers; and it relied on an erroneous fact. We'll take these in

turn, first noting the lens of review for each: Rivera-Medina's

first claim of error is preserved; but his second and third are

not (we'll explain why when we get to them).

Up first is the inadequate-explanation attack. Federal

law requires a sentencer to "state in open court the reasons for

its imposition of the particular sentence."

(c).

The degree of explanation needed depends on the context of each

individual case, Rita v. United States,

(2007)

("The appropriateness of brevity or length, conciseness or detail,

when to write, what to say, depends upon circumstances."), but a

sentencing court must say enough to show us it "considered the

parties' arguments and ha[d] a reasoned basis for exercising [its]

own legal decisionmaking authority,"

And "when a court imposes

an upwardly variant sentence, it must provide a correspondingly

cogent explanation." Rivera-Berríos,

. "[T]he

greater a deviation from the [guidelines sentencing range], the

more compelling the sentencing court's justification must be."

United States v. Reyes-Correa,

(1st Cir. 2023)

(first alteration added) (quoting United States v. Del Valle-

Rodríguez,

(1st Cir. 2014)). If the basis for

an upward variance is "a § 3553(a) [factor] already accounted for

- 5 - in the guideline range, a sentencing Court 'must articulate

specifically the reasons that this particular defendant's

situation is different from the ordinary situation covered by the

guidelines calculation.'" United States v. Carrasquillo-Sánchez,

(1st Cir. 2021) (quoting Rivera-Santiago,

).

A sentencing court must also conduct an "individualized

assessment" of the § 3553(a) factors. Gall,

(reasoning that any justification for a variance must be

"sufficiently compelling to support the degree of the variance,"

and in all sentencing matters a judge is required to provide

"adequate[]" explanations "to allow for meaningful appellate

review and to promote the perception of fair sentencing"). How to

weigh the § 3553(a) factors falls inside a sentencing court's

"informed discretion," United States v. García-Pérez,

(1st Cir. 2021) (quoting United States v. Clogston,

(1st Cir. 2011)), and the sentencing court has no

obligation to assign to those factors the weight that a defendant

would prefer, see Clogston,

.

Rivera-Medina says the court gave an inadequate

explanation for its sentence, urging that the court's reliance on

general machine gun concerns and the amount of magazines and ammo

Rivera-Medina possessed was improper under our case law. Like the

government, we disagree with this take.

- 6 - For starters, Rivera-Medina's reliance on Rivera-

Berríos, García-Pérez, and Carrasquillo-Sánchez as controlling an

outcome in his favor here is misplaced. Those cases are not, as

he urges, the mirror image of his -- by our lights, there are

important differences between them. Most pertinently here, the

sentencing court in all of those not-sufficiently-individualized-

sentences cases failed to make findings of aggravating factors

that could adequately justify the upwardly variant sentences that

were imposed. Here, all parties agreed at the time of sentencing

that a variance (25 months up from the top of the sentencing range,

recall) was warranted because of the mutually acknowledged

aggravating circumstances (Rivera-Medina's flight, wielding his

weapon, being out on bond for a similar machine gun offense, and

so on). And the record reflects that while the sentencing court

was mindful (as it often is) of general machine gun concerns as

well as the amount of ammo Rivera-Medina possessed, unlike what

happened in the above-listed line of cases, it also pointed to a

series of sufficiently individualized considerations by way of

explanation for its variance: the potential 30-year mandatory

minimum charge; Rivera-Medina's possession, aiming, and discarding

of the gun; his flight; and his being out on bond for a similar

offense when all of this went down.

Indeed, on balance, the full complement of aggravating

factors prompted the court's determination that Rivera-Medina

- 7 - deserved the upwardly variant sentence it pronounced. The court

weighed the § 3553(a) factors and, in its discretion, came out to

a more upwardly variant sentence than what the parties had

suggested based on those same factors. The court was not bound by

the joint sentencing recommendation, nor did it need "to explain

why it decided to eschew th[e] recommendation[]," see United States

v. Cortés-Medina,

(1st Cir. 2016) (collecting

examples), and it had no obligation to weigh the § 3553(a) factors

in the way Rivera-Medina would have preferred, Clogston,

; see also United States v. Caballero-Vázquez,

(1st Cir. 2018) (holding that, "[t]hough the district court's

consideration was unfavorable to the defendant, the fact that it

weighed some factors more heavily than others does not amount to

procedural error" (internal quotation marks and citation

omitted)). All told, the court provided a "cogent explanation,"

Rivera-Berríos,

, for why Rivera-Medina's situation

was "different from the ordinary situation covered by the

guidelines," Carrasquillo-Sánchez, 9 F.4th at 59 (quoting Rivera-

Santiago,

), and thus deserving of the upward

variance the court assessed.2 See also United States v. Santa-

2 The inadequate-explanation argument is imbued with this idea that the court erred because it started its sentencing discussion by agreeing that the parties' joint recommendation of 96 months would serve the sentencing considerations of deterrence, promoting respect for the law, and the like -- but then, in Rivera-Medina's telling, about-faced when it "add[ed] another 12 months." But

- 8 - Soler,

(1st Cir. 2021) ("The court's explanation

was adequate, bearing in mind that even when we are reviewing a

significant upward variance, we must afford due deference to the

district court's decision that the § 3553(a) factors, on a whole,

justify the extent of the variance.") (internal quotation marks

and citation omitted) (cleaned up)). We see no abuse of discretion

on this point.

Rivera-Medina next insists the court erred when it

disregarded the fact that, when he pointed the machine gun at

people, he did not know they were police officers. He contends

this fact (that he didn't "intentionally threaten[ police]

officers") diminishes his culpability -- an element the court

should have considered when assessing the "seriousness of the

offense" under § 3553(a). Rivera-Medina failed to raise this

argument below, though.3 So, as we previewed, it gets plain-error

we're reviewing the variance from the sentencing range, not scrutinizing the difference between the parties' nonbinding 96- month recommendation and where the court landed. See Cortés- Medina,

("In the absence of exceptional circumstances (such as the applicability of a statutory mandatory minimum sentence), the starting point for a court's sentencing determination is the guideline range, not the parties' recommendations."). At any rate, in context, it is clear this was all part of the court's colloquy. As just described, following its initial remarks, the court went on to explain (adequately, as we've said) how it landed on the 108-month sentence. Rivera-Medina did not contest the knowing nature of his 3

machine gun offense at any point during his proceedings -- not while agreeing to the descriptions in the plea agreement or PSR, nor after the court's sentencing pronouncement.

- 9 - review. See United States v. Soto-Soto,

, 448 n.1

(1st Cir. 2017).

To survive plain error review, an appellant must

demonstrate "(1) that an error occurred (2) which was clear or

obvious and which not only (3) affected the defendant's substantial

rights, but also (4) seriously impaired the fairness, integrity,

or public reputation of judicial proceedings."

(internal quotation marks and citation omitted).

Rivera-Medina cannot show that any error on the district

court's part -- if indeed there was any -- in not considering that

he did not "intentionally threaten[ police] officers" was clear or

obvious. In pressing this contention, Rivera-Medina does not

direct our attention to any case law supporting the proposition

that a sentencing court must consider whether a defendant knew the

precise identities of the individuals at whom a firearm was pointed

when the undisputed facts show that Rivera-Medina knowingly

pointed a machine gun at people. And where a "'defendant has not

identified any authority, whether in a statute or in the case law,'

for the proposition advanced, claimed error cannot be clear or

obvious." United States v. Sansone,

(1st Cir. 2024)

(quoting United States v. Rabb,

(1st Cir. 2021)).

Rivera-Medina's final procedural claim is that the

sentencing court erred when it based his sentence on an erroneous

fact not supported by the record, namely that he "aimed his weapon

- 10 - at a police officer when his brother was being arrested." Rivera-

Medina's brother was not home, he points out, so it necessarily

follows that the police couldn't have been in the process of

actually arresting his brother. This argument also was not raised

below, so we will review it for plain error.4

We agree with the government that this claim falls flat.

Context matters, so we start with the court's full phrase at issue

(because Rivera-Medina shines a light only on part of it): "Well,

I just want to tell you that it doesn't consider everything

because, as I indicated, he aimed his weapon at a police officer

when his brother was being arrested" (emphasis ours).

Contextually, the phrase "as I indicated" is a clear reference to

the facts the court found earlier in the proceeding when justifying

its variance -- that Rivera-Medina aimed the weapon at dispatched

officers "when they were executing a state-issued arrest warrant

against his brother." This earlier finding was consistent with

the plea agreement and PSR, and it was undisputed below by either

party. It is reasonably clear that when the court said the "as I

Once again, Rivera-Medina insists he preserved this, but 4

the truth is in the timeline. The record clearly shows the statement in question occurred after Rivera-Medina objected (his only objection at sentencing) on general procedural and substantive grounds. Thus, he couldn't have been objecting to that particular phrase because the court hadn't said it yet. And Rivera-Medina never objected again after hearing the phrase, though the court gave him an opportunity to do so when it asked, "[a]nything else?" Accordingly, Rivera-Medina did not properly preserve this claim. See Soto-Soto,

n.1.

- 11 - indicated" bit, it was simply calling back, however imprecisely,

to properly found facts it had previously used in its explanation.

So we see no error on this front either.

Procedural claims parried, we turn to the substantive

reasonableness side of things, where Rivera-Medina asks us to stamp

his sentence unreasonable because he received a harsher punishment

than others who have been charged with similar firearms offenses.5

The government says this "slightly higher variance" is an entirely

defensible result.6

A sentence is substantively reasonable if "it rests on

'a plausible sentencing rationale' and reflects a 'defensible

result'" within "'the expansive boundaries of [the] universe' of

reasonable sentences." United States v. de Jesús,

, 43

5 Part of Rivera-Medina's argument here echoes the theme that the court's error was in imposing a sentence above the parties' recommendation, which he says already accounted for all the relevant sentencing factors. But as we mentioned earlier, this angle is foreclosed by our case law: Sentencing judges have no duty to give "any decretory significance to such non-binding recommendations -- or even to . . . explain why [they] decided to eschew th[at] recommendation[]." See Cortés-Medina,

. 6 Ultimate outcome notwithstanding, we disagree with the government's characterization of twelve additional months' imprisonment as "slight." See, e.g., United States v. Colón- Cordero,

(1st Cir. 2024) (noting an upwardly variant sentence by nine months represents a "significant time period by any reasonable measure"); see also Rosales-Mireles v. United States,

(2018) ("To a prisoner, [the] prospect of additional time behind bars is not some theoretical or mathematical concept. Any amount of actual jail time is significant." (cleaned up and citations omitted)).

- 12 - (1st Cir. 2016) (alteration in original) (quoting United States v.

Martin,

(1st Cir. 2008)). When we examine a

sentence's substantive reasonableness, we afford "considerable

deference" to the court's judgment. Id. at 42.

Even assuming, favorably to Rivera-Medina, that he

preserved his sentencing-disparity-like claim, on this record, it

fails. Rivera-Medina's comparisons lack the requisite precision:

He cites generalized sentencing data for similar firearms offenses

in the United States and Puerto Rico, never drawing individualized

comparisons to any of the offenders mentioned -- taking into

account, for example, aggravating circumstances, criminal history,

or machine gun cases specifically. This is insufficient for

purposes of a sentencing-disparity claim. See United States v.

Rodríguez-Adorno,

(1st Cir. 2017) (explaining

that a defendant "utterly failed to lay any foundation on which to

build a claim of sentencing disparity" where "he present[ed] no

information" on, for instance, a comparator's offense or criminal

history); see also United States v. Gonzalez,

(1st

Cir. 2020) ("[W]hen a defendant makes a claim of sentencing

disparity, he 'must compare apples to apples.'" (quoting United

States v. González-Barbosa,

(1st Cir. 2019))).

Rivera-Medina also tries again -- unsuccessfully -- to

compare himself to the defendants in Rivera-Berríos, García-Pérez,

and Carrasquillo-Sánchez. For the reasons already explained

- 13 - above, his case is not like those. At bottom, Rivera-Medina's

criminal history combined with other aggravating factors frustrate

the requisite "apples to apples" comparison. Gonzalez,

. And, reviewing for abuse of discretion, we conclude the

aggravating circumstances articulated by the district court

demonstrate a "plausible sentencing rationale" that supports a

"defensible result," landing the 108-month sentence within "the

expansive boundaries of [the] universe" of reasonable sentences.

de Jesús,

(internal quotation marks and citation

omitted). Nothing more is required -- the sentence was

substantively reasonable.

Affirmed.

- 14 -