US v. Gonzalez-Rodriguez

Filing

OPINION issued by Jeffrey R. Howard, Chief Appellate Judge; Bruce M. Selya, Appellate Judge and John J. McConnell , Jr., U.S. District Judge.* Published. * Of the District of Rhode Island, sitting by designation. [16-1364]

Case: 16-1364

Document: 00117165359

Page: 1

Date Filed: 06/09/2017

Entry ID: 6098463

United States Court of Appeals
For the First Circuit
No. 16-1364
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ RAMÓN GONZÁLEZ-RODRÍGUEZ,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before
Howard, Chief Judge,
Selya, Circuit Judge, and
McConnell, District Judge.*

Rick Nemcik-Cruz on brief for appellant.
Rosa Emilia Rodríguez-Vélez, U.S. Attorney, Mariana E. BauzáAlmonte, Assistant U.S. Attorney, Chief, Appellate Division, and Thomas
F. Klumper, Assistant U.S. Attorney, on brief for appellee.

June 9, 2017

* Of the District of Rhode Island, sitting by designation.

Case: 16-1364

Document: 00117165359

HOWARD,

Chief

Page: 2

Judge.

Date Filed: 06/09/2017

José

Ramón

Entry ID: 6098463

González-Rodríguez

("González") challenges the reasonableness of his 33-month incarcerative
sentence for possession of a machine gun in violation of 18 U.S.C.
§§ 922(o) and 924(a)(2).

After careful consideration, we affirm.

I.
In August 2015, the Puerto Rico Police Department ("PRPD")
executed a search warrant on a residence in Río Grande, Puerto Rico,
after

receiving

two

anonymous

complaints

about

an

individual

(or

individuals) with a weapon at the address, and after a PRPD officer drove
by and saw an individual with a weapon outside the home.

At the time

that the warrant was executed, a PRPD officer arrested González, who was
in the home and in possession of a firearm.

The PRPD seized the weapon,

a .40 caliber Glock pistol, as well as two 22-round and two 15-round
magazines, 52 rounds of ammunition, a Glock back slide cover, a cellular
phone,

a

weight

distribution.

scale,

and

small

bags

commonly

used

for

drug

González admitted to owning the gun, which he claimed

that he had bought because "it is fashion[able] in Puerto Rico," and he
admitted to knowing that it was capable of firing automatically.

He

also admitted to using marijuana between seven and eight times per day
and to taking Tramadol -- a narcotic-like pain reliever -- frequently.
González was transferred to federal custody and, ultimately,
entered a straight guilty plea to possession of a machine gun.

The

Probation Office subsequently determined that U.S.S.G. §2K2.1(a)(4)(B)
was the applicable guideline and that -- after applying a three-level
reduction for acceptance of responsibility under §3E1.1 -- González's

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total offense level was 17.

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Date Filed: 06/09/2017

Entry ID: 6098463

When combined with González's criminal

history category of I, this yielded an advisory guideline sentencing
range of 24 to 30 months' imprisonment.
presentence

investigation

report

González did not contest the

("PSR")

prepared

by

the

Probation

Office.
Prior

to

his

sentencing

hearing,

González

submitted

a

sentencing memorandum requesting a downward variance to 18 months'
imprisonment, whereas the government requested an upward variance to 33
months' imprisonment.

The district court sentenced González according

to the government's recommendation.

The court explained that González's

"conduct [flouted] the law and . . . represent[ed] a risk to the
community."

Therefore, the court concluded, the variant sentence was

"sufficient but not greater than necessary to meet [the] objectives of
punishment and of deterrence in this case."
This timely appeal followed.

II.
Claims of sentencing error such as González's trigger a twostep inquiry: "we [must] first determine whether the sentence imposed
is procedurally reasonable and then determine whether it is substantively
reasonable."
2011).

As

United States v. Clogston, 662 F.3d 588, 590 (1st Cir.
González

argues

that

his

33-month

sentence

is

both

procedurally and substantively unreasonable, we take up his arguments
in turn.1

1 González attempts to expand the record on appeal by appending
several photographs and a Department of Homeland Security Report of
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A. Procedural Reasonableness
When evaluating the procedural reasonableness of a sentence,
"we afford de novo review to the sentencing court's interpretation and
application of the sentencing guidelines, assay the court's factfinding
for

clear

error,

discretion."

and

evaluate

its

judgment

calls

for

abuse

of

United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st

Cir.), cert. denied, 136 S. Ct. 258 (2015).

However, we review any

unpreserved procedural reasonableness challenge for plain error only.
United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).
preserved none of his claims for appeal.

And González

To prevail under the plain

error standard, González must show "(1) that an error occurred (2) which
was clear or obvious and which not only (3) affected [his] substantial
rights, but also (4) seriously impaired the fairness, integrity, or
public reputation of judicial proceedings."

Id.

González first argues that the district court "mistakenly
exaggerated [his] use of controlled substances."

He concedes that he

regularly used marijuana prior to his arrest but asserts that there is
"no evidence in the record that [he] ever used Tramadol." Yet, according
to the "Substance Abuse" section of the PSR, González himself reported
taking

Tramadol.

"Generally,

a

PSR

bears

sufficient

indicia

of

reliability to permit the district court to rely on it at sentencing."
United States v. Cyr, 337 F.3d 96, 100 (1st Cir. 2003) (quoting United

Investigation to his brief.
This evidence was not presented to the
district court and is not properly part of the record on appeal. See
Fed. R. App. P. 10(a). Thus, we disregard it. See United States v.
Gonsalves, 735 F.2d 638, 641 (1st Cir. 1984).

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States v. Taylor, 277 F.3d 721, 724 (5th Cir. 2001)).
to challenge any assertions in the PSR.

See id.

Entry ID: 6098463

González was free

As he did not, the

district court was entitled to draw upon the facts within it, including
those about González's Tramadol use.

See Fed. R. Crim. P. 32(i)(3)(A);

see also United States v. Green, 175 F.3d 822, 838 (10th Cir. 1999)
("Failure to object to a fact in a presentence report . . . acts as an
admission of fact." (quoting United States v. Windle, 74 F.3d 997, 1001
(10th Cir. 1996)).

We spy no error, plain or otherwise.

Next, González makes a series of arguments -- raised for the
first time on appeal -- that the government "misled the District Court
at the sentencing hearing" and in its sentencing memorandum by making
statements contrary to the evidence or without evidentiary support,
thereby inducing the district court's reliance on erroneous facts.
Arguments raised for the first time on appeal are either forfeited or
waived.

See United States v. Aguasvivas-Castillo, 668 F.3d 7, 13–14

(1st Cir. 2012).

However, even if we assume that González is entitled

to plain error review, he nonetheless fails to meet the criteria for
relief.
González

claims

that

the

government

did

not

adequately

support its assertion that his machine gun posed a risk to "anybody that
would have been around" him.

He argues that, in most states, "ownership

and possession of certain machine guns is legal under both state and
Federal law" and, hence, "not . . . inordinately dangerous."

The

undisputed fact that machine gun ownership is legal in some narrow
instances does not, however, lead inexorably to the conclusion that a
machine gun was not "inordinately dangerous" in González's hands.

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See

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18 U.S.C. § 922(o).

Page: 6

Date Filed: 06/09/2017

Entry ID: 6098463

To the contrary, González admits to being a habitual

drug user, a fact the sentencing court repeatedly noted, and there is a
clear "nexus between Congress's attempt[s] to keep firearms away from
habitual drug abusers and its goal of reducing violent crime."

United

States v. Yancey, 621 F.3d 681, 686 (7th Cir. 2010) (per curiam).

This

claim thus fails at the first step of plain error review.
González
argument

that

protection.2

derides

machine

as

guns

We are unmoved.

"patently

like

his

untrue"

are

not

the
used

government's
for

personal

The extent to which the district court

might have relied on this argument, if at all, is unclear.

Yet, even

if the court relied upon it, we have previously upheld a sentence where
the sentencing judge explained, "You cannot argue that this [Glock pistol
modified to shoot automatically] can be used for personal defense . . .
it is not a regular weapon, it's a machine gun."

United States v. Cruz-

Vázquez, 841 F.3d 546, 548 (1st Cir. 2016) (decided on other grounds).
Under these circumstances, there was no plain error.
González

argues

that

the

government

made

a

"grotesque

exaggeration" when it claimed that automatic weapons fire "tons of
ammunition."

This may have been an unnecessary rhetorical flourish, but

it hardly went beyond the pale.

González was, after all, in possession

of two extended magazines that were taped together to facilitate faster

2 The record contains contradictory statements as to whether
González ever claimed to use his Glock for personal protection. On the
one hand, the PSR states that González "denied possessing [the Glock]
for protection" and bought it because to do so was fashionable. On the
other hand, the government stated at the sentencing hearing that González
claimed to have "this weapon for his protection."
González did not
object in either instance. The resulting ambiguity further buttresses
our conclusion that there was no plain error here.

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loading of the Glock.

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Date Filed: 06/09/2017

Entry ID: 6098463

González relatedly claims that the government

misleadingly implied that he possessed an "unusually large" amount of
ammunition.

We

find

no

inappropriate

insinuation

in

either

the

government's sentencing memorandum or in the transcript of the sentencing
hearing.

In

fact,

both

the

government

and

the

district

specifically stated that there were "54 rounds" of ammunition.3

court

Although

this overstates the amount of ammunition in González's possession by two
rounds, González's argument misses the mark.

Here again, we find no

plain error.
Moving on, González claims that the "'elephant' in the room
at the sentencing hearing . . . was the prosecution's argument that
[González] was involved in uncharged criminal activity," namely, drug
distribution (footnote omitted).

In both its sentencing memorandum and

at the sentencing hearing, the government asked the district court to
impose a sentence of 33 months, and it was free to offer reasons
supporting its recommendation -- namely, that González could be "link[ed]
to other . . . criminal activity as well."

See 18 U.S.C. § 3661.

González describes the government's argument as "unsupported by evidence
in the record."

But our review of the record reveals González's

characterization to be false.

The uncontested PSR states that one

anonymous complainant reported to the PRPD that an individual was
carrying "illegal firearms to protect a drug sale point."

The PSR also

states that PRPD officers found a digital scale and small plastic bags

3 The government concedes in its appellate brief that the court and
the government mistakenly noted 54 rounds of ammunition. Only 52 rounds
were actually seized.

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"commonly used for drug distribution" in the home.4

Entry ID: 6098463

Further, despite

being unemployed, González admitted to consuming roughly $70 worth of
marijuana every three days.

Cf. United States v. Dolliver, 228 F. App'x

2, 4 (1st Cir. 2007) (per curiam) ("[Defendant] had a '30-bag-a-day'
heroin habit (a fact from which the court might have inferred that
[Defendant] sold a substantial amount of drugs in order to support his
habit). . . .").
González does attempt to offer facially plausible alternative
explanations for these unfavorable facts: for example, plastic "baggies
. . . have multiple kitchen uses, including . . . the legal transportation
of lunch sandwiches," and "the scale was his mother's and she used it
to make 'dumplings.'"

Yet, "[i]f the facts plausibly support competing

inferences, as here, a sentencing court cannot clearly err in choosing
one."

United States v. Olivero, 552 F.3d 34, 39–40 (1st Cir. 2009)

(citing United States v. Prochner, 417 F.3d 54, 66 n.9 (1st Cir. 2005)).
Additionally, it is far from apparent that the district court relied on
the government's statements on this issue at sentencing.

González

concedes as much in his appellate brief when he says that the district
court "might have relied on circumstantial evidence in the record to
support a finding of uncharged criminal conduct" (emphasis added).

We

again find no plain error.

4 On appeal, González disputes that these items constitute "drug
paraphernalia," but -- under the circumstances -- we disagree.
See,
e.g., United States v. DesMarais, 938 F.2d 347, 352 (1st Cir. 1991)
(finding an inference of intent to distribute in "the presence of drug
paraphernalia, including a . . . scale [and] plastic baggies").

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In

his

final

Page: 9

claim

Date Filed: 06/09/2017

of

procedural

Entry ID: 6098463

error,

González

characterizes the district court's "explanation of the above-guidelines
sentence as short and simple" and, therefore, inadequate.

To be sure,

a district court has the burden of explaining deviations from the
guideline range.
2008).

See United States v. Martin, 520 F.3d 87, 91 (1st Cir.

Even if we accept arguendo that González's premise is sound,

however, we cannot agree with the conclusion he asks us to reach.
González did not raise his objection below, and "we have held that a
district

court's

failure

to

provide

an

adequate

explanation

of

a

sentence, without more, is not sufficient to constitute plain error."
United States v. Cortés-Medina, 819 F.3d 566, 571 (1st Cir.), cert.
denied, 137 S. Ct. 410 (2016). "Here, there is no 'more.'" Id. González
has given us no reason to believe that the district court would have
handed down a milder sentence if only there had been more robust
compliance with 18 U.S.C. § 3553(c).
In sum, we do not find González's sentence procedurally
unreasonable.

B. Substantive Reasonableness
With respect to substantive reasonableness, we usually review
for

abuse

of

circumstances.
2013).

discretion,

taking

into

account

the

totality

of

the

United States v. Zavala-Martí, 715 F.3d 44, 50 (1st Cir.

Although

González

did

not

preserve

his

substantive

unreasonableness claim below, we assume -- favorably to him -- that our
standard of review remains the same.

Cf. United States v. Nuñez, 840

F.3d 1, 7 (1st Cir. 2016) (noting that there is some question as to

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whether we review an unpreserved claim of substantive unreasonableness
for plain error or abuse of discretion).
González
substantively

argues

unreasonable.

that

his

Yet,

a

above-guideline
sentence

falling

sentence
outside

is
the

applicable Guidelines sentencing range "does not come to the reviewing
court with a presumption of unreasonableness."

United States v. Arroyo-

Maldonado, 791 F.3d 193, 198 (1st Cir. 2015).

As we have said before,

"[a] sentence will stand so long as there is 'a plausible sentencing
rationale and a defensible result.'"

United States v. Reyes-Rivera, 812

F.3d 79, 89 (1st Cir. 2016) (quoting Martin, 520 F.3d at 96).

In the

instant case, we find both.
The record shows that the district court considered the 18
U.S.C. § 3553(a) factors and adequately explained its sentence.
Arroyo-Maldonado, 791 F.3d at 201.

See

Indeed, beyond merely stating that

it had "considered all factors set forth in 18 [U.S.C. §] 3553(a)," the
court thoughtfully identified and engaged with both mitigating and
aggravating factors at the sentencing hearing. Weighing of those factors
is left largely within a sentencing court's discretion, and González's
sentence is not substantively unreasonable simply because that court
"chose

not

to

attach

to

certain

of

the

mitigating

significance that [González] thinks they deserved."
at 593.

factors

the

Clogston, 662 F.3d

"The district court had plenty of reason to sentence as it

did." Reyes-Rivera, 812 F.3d at 89. In particular, the court emphasized
punishment and deterrence. We have repeatedly recognized that deterrence
is an important factor in the sentencing calculus.
Díaz-Arroyo, 797 F.3d 125, 129 (1st Cir. 2015).

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United States v.

And we flatly reject

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González's implied argument that the Glock did not pose "a real . . .
danger to [González's] family members or the rest of his community" and,
thus, that deterrence was unnecessary.
Flores-Machicote,

706

F.3d

16,

See generally United States v.

22–23

(1st

Cir.

2013)

(discussing

relationship between deterrence and trends in gun violence in Puerto
Rico).
We find no abuse of the court's broad discretion.

Under the

circumstances, imposition of a 33-month sentence was not substantively
unreasonable. Cf. Clogston, 662 F.3d at 592 ("There is no one reasonable
sentence

in

any

given

case

but,

rather,

a

sentencing outcomes.").

III.
For the forgoing reasons, we affirm.

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universe

of

reasonable