FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO Hon. Francisco A. Besosa, U.S. District Judge
L. Cortés Cortés, was on brief for appellant.
Emilia Rodríguez-Vélez, United States Attorney,
Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, and Mainon A. Schwartz,
Assistant United States Attorney, on brief for appellee.
Barron and Selya, Circuit Judges, and Katzmann,
pleading guilty to a charge of possessing a machine gun in
violation of 18 U.S.C. § 922(o), the uncontested
presentence report("PSR") placed
defendant-appellant Angel Rafael Contreras-Delgado
("Contreras-Delgado") in a federal guideline
sentencing range ("GSR") of 24 to 30 months'
imprisonment. The district court judge sentenced him to 46
months. Claiming that this variant sentence is procedurally
flawed and substantively unreasonable, Contreras-Delgado now
appeals. We affirm.
this appeal follows a guilty plea, we draw the facts from the
change-of-plea colloquy, the undisputed portions of the PSR,
and the transcript of the sentencing hearing. United
States v. Arias-Mercedes, 901 F.3d 1, 4 (1st Cir. 2018).
In January 2017, undercover police officers saw a man, later
identified as Contreras-Delgado, standing outside one of the
apartments in a public housing project in Bayamón,
Puerto Rico. Contreras-Delgado looked at the officers, asked
"What's going on Man" (translation from
Spanish), and lifted his arms, which exposed a black gun with
an extended magazine in his waistband. The officers
identified themselves and asked if Contreras-Delgado had a
firearms license; he replied that he did not. The officers
arrested Contreras and seized the gun. The gun - a Glock
9-millimeter ("mm") pistol - had been modified to
fire multiple rounds with a single pull of the trigger and
was fully loaded with a 31-round extended magazine. At the
time of arrest, the officers found two more 9-mm magazines
next to Contreras-Delgado: another fully loaded 31-round
magazine and a 17-round magazine with 15 rounds of
agents questioned Contreras-Delgado after reading him his
rights. Contreras-Delgado admitted that he sold drugs and had
purchased the gun that was in his waistband "for
protection." He told the agents he knew the pistol was
modified to fire automatically "because he specifically
asked for it to be fully auto when he purchased it." The
firearm also had an aftermarket barrel installed, was
equipped with a high-capacity 31-round magazine, and
incorporated a machine gun conversion device designed to make
semiautomatic Glock pistols fire automatically. No ownership
records for the gun could be found.
was indicted for possessing a machine gun, in violation of 18
U.S.C. § 922(o). He knowingly and voluntarily entered a
straight plea of guilty to possessing a machine gun as
alleged in the indictment. At the change-of-plea hearing,
Contreras-Delgado told the district court of his current
treatment for depression, though he remained competent to
plead. He also indicated that he understood that sentencing
would be in the discretion of the court and could differ from
the guidelines and/or the parties' sentencing
recommendations. Upon Contreras-Delgado's motion, the
judge issued an order permitting evaluation of him by a
clinical psychologist, Dr. Alexandra Ramos ("Dr.
Ramos"), in support of mitigation of sentence.
U.S. Probation Office prepared a PSR that outlined the offense
conduct described above. Possession of a machine gun carried
a base offense level of 20; the PSR subtracted 3 levels for
acceptance of responsibility, yielding a total offense level
was twenty-two years old when he was arrested for the instant
offense. By that time, he had two juvenile adjudications: one
for pointing a bladed weapon at four other children and
threatening to stab them, and another for stealing from his
mother and threatening to kill both her and his grandmother.
He had also been arrested as an adult for two counts of
distributing a controlled substance, but those charges were
dismissed pursuant to Puerto Rico's Speedy Trial Act.
None of these events counted for criminal history points
under the guidelines. Accordingly, the PSR used a Criminal
History Category of I, and calculated Contreras-Delgado's
GSR as 24 to 30 months' imprisonment. Under the
guidelines, Contreras-Delgado was ineligible for probation.
See U.S.S.G. § 5B1.1.
then set forth at length Contreras-Delgado's personal
history and characteristics, including his family history,
and his mother's impression of his treatment needs: his
"volatile nature" plus "hyperactivity disorder
. . . when combined with his drug use, results in violent
behavior. If he is under treatment, he can control his
impulses." The PSR also included a detailed summary of
Contreras-Delgado's mental and emotional health,
including a 2012 evaluation by a clinical psychologist and
2017 findings by the Bureau of Prisons Psychology Services.
concluding paragraph, the PSR noted that the district court
could "consider the following factors to impose a
sentence outside the advisory [g]uidelines":
Contreras-Delgado's history of substance abuse, his
juvenile record, the fully loaded weapon and additional
magazines he possessed during the instant offense, his
admissions that he had sought out a fully automatic firearm
and that he sold drugs, and finally, that he was arrested as
part of an operation targeting drug point activities in a
public housing project.
did not object to any portion of the PSR. He did, however,
submit a sentencing memorandum urging the district court to
focus on Contreras-Delgado's rehabilitative potential and
recommending a non-GSR "alternative sentence,"
combining incarceration, probation, and supervised release.
sentencing, Contreras-Delgado sought to present briefly the
testimony of Dr. Ramos, the clinical psychologist who
evaluated him while he was in jail. The United States
("the government") offered instead to stipulate to
the contents of the report prepared by Dr. Ramos and its
recommendation that Contreras-Delgado receive substance abuse
treatment. The district court approved the stipulations and
ruled that there was no need for Dr. Ramos to testify. The
district court summarized Dr. Ramos's recommendation --
that Contreras-Delgado "receive substance abuse
treatment to address his problems with addiction and to
prevent relapses" -- and directed that ...