US v. Santos-Rivera, No. 14-2014 (1st Cir. 2016)
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Not for Publication in West's Federal Reporter United States Court of Appeals For the First Circuit No. 14-2014 UNITED STATES, Appellee, v. CHRISTIAN SANTOS-RIVERA, Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Francisco A. Besosa, U.S. District Judge] Before Torruella, Stahl, and Thompson, Circuit Judges. Luis Rafael Rivera and Luis Rafael Rivera Law Offices on brief for appellant. Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Juan Carlos Reyes-Ramos, Assistant United States Attorney, on brief for appellee. August 16, 2016 STAHL, ("Santos") pled Circuit guilty Judge. to the Christian unlawful machinegun and now appeals his sentence. I. On altercation January with Santos-Rivera possession of a We affirm. Facts & Background 8, another several warning shots. 2014, Santos female, and during his which wife Santos had an fired The next day, authorities executed a warrant for his arrest and, with Santos' consent, searched a vehicle used in the incident. The search revealed a gun used by Santos, a Glock pistol that had been unlawfully modified so that it could operate as a machinegun, automatically shooting more than one shot, without manual reloading, by a single function of the trigger. Thereafter, Santos was indicted for possession of a machinegun, in violation of 18 U.S.C. § 922(o), and subsequently pleaded guilty pursuant to a plea agreement wherein the parties recommended a sentence of 24 to 30 months' imprisonment. In the Presentence Investigation Report ("PSR"), the probation officer calculated a Sentencing Guidelines Range ("SGR") of 30 to 37 months. The PSR also recounted Puerto Rico's high firearms and violent crime rate, noted that the offense may be more serious in Puerto Rico than the Sentencing - 2 - Commission considered in formulating the guidelines, and pointed out the district court's discretion to vary upward from the SGR on this basis. At sentencing, the court accepted the PSR's calculations, found that a guidelines sentence would not satisfy the factors in 18 U.S.C. § 3553(a), and sentenced Santos to 48 months' imprisonment. Santos never objected to the PSR and did not raise any objections at his sentencing. II. We review He now appeals. Analysis sentencing decisions for procedural and substantive reasonableness, ordinarily employing a deferential abuse-of-discretion standard. See United States Maldonado, 791 F.3d 193, 197 (1st Cir. 2015). v. Arroyo- Because Santos failed to contemporaneously object in the district court, we review his unpreserved procedural reasonableness claim under the plain-error standard. See id. This "entails four showings: (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." Id. (quoting United States v. Medina–Villegas, 700 F.3d 580, 583 (1st Cir. 2012)). As claim, the for his standard of unpreserved review is - 3 - substantive less certain. reasonableness See, e.g., United States v. Ruiz-Huertas, 792 F.3d 223, 228 (1st Cir.), cert. denied, 136 S. Ct. 258 (2015). We need not resolve this ambiguity even today, however, because if the abuse-of- discretion standard applied, Santos' claim would fail. A. Santos Procedural Reasonableness contends that the district adequately justify its upward variance. court did not Because we find that the district court committed no error, plain or otherwise, this argument fails. "[T]he incidence of particular crimes in the relevant community appropriately informs and contextualizes the need for deterrence." United States v. Narváez-Soto, 773 F.3d 282, 286 (1st Cir. 2014) (quoting United States v. Flores-Machicote, 706 F.3d 16, 23 (1st Cir. 2013)) (ellipsis omitted). "if a community sentencing judge is relatively reasonably free may . heightened level of deterrence." 23. . of . For example, violent see no crime, need a for a Flores-Machicote, 706 F.3d at "If, however, violent crime is running rampant, the judge reasonably may conclude that the need for deterrence is great-and this may translate into a stiffer sentence." At the § 3553(a) factors. hearing, the judge clearly Id. considered the See United States v. Torres-Landrúa, 783 - 4 - F.3d 58, 68 statement n.12 that sentencing (1st he Cir. 2015) considered factors 'is ("The all sentencing the to entitled 18 U.S.C. significant judge's § 3553(a) weight.'" (quoting United States v. Santiago-Rivera, 744 F.3d 229, 233 (1st Cir. 2014))). And, contrary to what Santos suggests, the judge individualized also gave emphasizing, for example, how attention Santos not to only his case, possessed a machinegun but also fired it during an altercation and so put the lives of others at risk. Finally, the judge clearly explained the rationale for the upward variance, explicitly noting the significance of the deterrence factor difficulties crimes. in in this curtailing case its given high Puerto incidence Rico's of distinct gun-related See 18 U.S.C. § 3553(a)(2)(B). Thus, Santos' procedural challenge fails. B. Substantive Reasonableness Santos also argues that his sentence is substantively unreasonable. Again, there is no error to be found and so Santos' argument fails. "[T]he linchpin of a reasonable sentence plausible sentencing rationale and a defensible result." States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008). - 5 - is a United "Because we have already found the district court's sentencing rationale to rest within the range of acceptable discretion, 'we limit our review to the question of whether the sentence, in light of the totality of the circumstances, resides within the expansive universe of reasonable sentences.'" United States v. PedrozaOrengo, 817 F.3d 829, 837 (1st Cir. 2016) (quoting United States v. King, 741 F.3d 305, 308 (1st Cir. 2014)). Given the statutory maximum sentence of ten years, see 18 U.S.C. § 924(a)(2), the degree of the upward variance, and the circumstances presented in this case, we find no reason to doubt the substantive Pedroza-Orengo, 817 reasonableness F.3d at 837; of the United sentence. States v. See Vázquez- Martínez, 812 F.3d 18, 26 (1st Cir. 2016); United States v. Pantojas-Cruz, 800 F.3d 54, 62-63 (1st Cir. 2015). On these facts, Santos' substantive challenge would fail even under the more forgiving abuse-of-discretion standard.1 1 In something of a parting shot, Santos also suggests that the judge had to depart downward from the guidelines under U.S.S.G. § 5H1.3 because of his supposed "mild mental retardation, issues with poor memory and attention deficit disorder . . . ." Not only did Santos fail to present this argument below, but he also failed to adequately develop the argument in his brief. Consequently, his suggestion goes nowhere. See, e.g., United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). - 6 - III. Conclusion Because the district court's sentencing decision is procedurally and substantively reasonable, we AFFIRM. - 7 -
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