FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Gustavo A. Gelpí, Jr., U.S. District
Omar Rosa-Albert on brief for appellant.
Francisco A. Besosa-Martinez, Assistant United States
Attorney, Rosa Emilia Rodriguez-Velez, United States
Attorney, and Mariana E. Bauzá-Almonte, Assistant
United States Attorney, Chief, Appellate Division, on brief
Howard, Chief Judge, Boudin and Barron, Circuit Judges.
BOUDIN, CIRCUIT JUDGE
Hernández-Ramos ("Hernández") appeals
to contest his sixty-month prison sentence following a guilty
plea entered in district court to two offenses: being a felon
in possession of a firearm, 18 U.S.C. § 922(g)(1), and
unlawfully possessing a machine gun, id. §
September 1, 2016, Puerto Rico police officers were
patrolling in the vicinity of the Luis Llorens-Torres Public
Housing Project in San Juan. As the officers approached a
group gathered near a known drug distribution point, one man,
Hernández, pulled a firearm from his waist and fled,
throwing down the firearm. The police captured
Hernández and recovered the gun, which proved to have
been modified to fire as an automatic weapon.
pled guilty to both counts. Based on a total offense level of
seventeen and a criminal history category ("CHC")
of III, the presentence report stipulated a guidelines
imprisonment range of thirty to thirty-seven months. At
sentencing, the government sought a sentence at the top of
the guidelines range. The government argued that
Hernández had previously been convicted of crimes
involving weapons and threatening public officers, serving
time for one such crime, and that messages on his cell phone
suggested his involvement in selling drugs and high-capacity
firearm magazines. Defense counsel requested a
twenty-four-month sentence, a six-month downward variance.
district court, in no way bound by the parties'
sentencing recommendations whether the parties agree or
differ, United States v. Rivera-González, 776
F.3d 45, 51 (1st Cir. 2015), varied upward based on the
severity of the offense and related conduct,
Hernández's criminal history and past behavior,
and the need to deter Hernández and other individuals
from committing firearms offenses. The court noted Puerto
Rico's continuing experience with gun violence, a
permissible sentencing consideration provided the court does
not "ignore [a defendant's] individual
circumstances." United States v.
Laureano-Pérez, 892 F.3d 50, 52 (1st Cir. 2018).
court sentenced Hernández to sixty months in prison to
be followed by three years of supervised release. The
court's summary of its reasoning was as follows:
[T]his is an individual who continues to threaten other
individuals, has had weapons when he's threatened others,
and has . . . semiautomatic or a machine gun-type firearms in
his possession, he's carrying them. He's also
distributing controlled substances or trafficking firearms.
Even though he's not charged with that here, it is
something the Court can consider. So, I find in this
particular case an upward variance is warranted.
And I find that given all the factors that I just mentioned
along with the community geographic factors, the recidivism
he has shown, the type of firearm he was carrying, and also
the fact that his cell phone reveals that he is selling minor
amounts of drugs and also trafficking or attempting to
traffic ammunition, the Court finds that a sentence of 60
months is sufficient but not greater than necessary.
counsel objected to the sentence as "procedurally
unreasonable." The court answered: "What you're
talking about is 'substantively unreasonable.' Object
to both and preserve it for the record." Defense counsel
replied, "Right. Substantively and procedurally
unreasonable . . . for the record."
appeal, Hernández's sole claim is that the variant
sentence was excessive and thus substantively unreasonable.
Reviewing for abuse of discretion, Gall v. United
States, 5 ...