United States v. Carmona-Alomar ( 2024 )

United States Court of Appeals
For the First Circuit
Nos. 21-1705,
21-1707
UNITED STATES OF AMERICA,
Appellee,
v.
ÁNGEL MANUEL CARMONA-ALOMAR,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Barron, Chief Judge,
Thompson and Montecalvo, Circuit Judges.
Héctor Sueiro-Álvarez, with whom Eric Alexander Vos, Federal
Public Defender, and Franco L. Pérez-Redondo, Assistant Federal
Public Defender, were on brief, for appellant.
Gregory B. Conner, Assistant United States Attorney, with
whom W. Stephen Muldrow, United States Attorney, and Mariana E.
Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate
Division, were on brief, for appellee.
July 22, 2024
BARRON, Chief Judge. In these consolidated appeals,
Ángel Manuel Carmona-Alomar ("Carmona") challenges both the
sixty-month prison sentence that he received for his
machinegun-possession-related offenses and the consecutive
two-year prison sentence that he also received for the revocation
of his term of supervised release. We affirm.
I.
In 2017, Carmona was a passenger in a vehicle that
officers of the Puerto Rico Police Department pulled over in
Guaynabo, Puerto Rico.1 Based on what the officers referred to as
an odor of marijuana, they conducted a search of the vehicle's
passenger compartment and discovered, as relevant here, a 9mm Glock
pistol that had been modified to shoot automatically, seventy-four
rounds of 9mm ammunition, marijuana, and Percocet pills. Carmona
admitted to the police that the pistol and ammunition belonged to
him.
Following the search, Carmona was charged in the United
States District Court for the District of Puerto Rico with one
count of unlawful possession of a firearm by a prohibited person
(a drug user) in violation of 18 U.S.C. § 922(g)(3), and one count
We draw the facts from the uncontested portions of the
1
defendant's presentence investigation report ("PSR") and
transcripts of the defendant's change of plea and sentencing
hearings. See United States v. Edwards, 857 F.3d 420, 421 n.1
(1st Cir. 2017).
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of unlawful possession of a machinegun in violation of 18
U.S.C. § 922(o). Carmona pleaded guilty to the charges, and, in
February 2018, he was sentenced to thirty months' imprisonment to
be followed by three years' supervised release.
Carmona began serving his supervised release term in
April 2019. As a condition of his supervised release, he was
prohibited from committing another federal, state, or local crime.
On September 9, 2020, an officer with the Puerto Rico
Police Department informed the United States Probation Office
("Probation") that Carmona had been seen placing what was believed
to be a firearm in his waistband. The same day, pursuant to the
conditions of Carmona's supervised release, Probation officers
located Carmona, searched him and the vehicle that he had been
driving, and recovered a .45 caliber Glock pistol modified to shoot
automatically and a total of fifty-six rounds of .45 caliber
ammunition.
The following day, Probation filed a notice of violation
of supervised release in Carmona's 2017 case and requested a
warrant for his arrest. Carmona was subsequently arrested and
ordered detained pending further proceedings related to the
violation of the terms of his supervised release.
On September 23, 2020, a federal grand jury in the
District of Puerto Rico returned a new indictment in relation to
the incident on September 9, 2020. Carmona was charged with
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possessing a firearm as a prohibited person (this time, a felon)
in violation of 18 U.S.C. § 922(g)(1) and possessing a machinegun
in violation of 18 U.S.C. § 922(o). Carmona entered a straight
plea of guilty to both new charges.
In preparation for sentencing in relation to Carmona's
new § 922 convictions, Probation prepared a presentence
investigation report ("PSR") pursuant to Federal Rule of Criminal
Procedure 32. In accord with United States Sentencing Guideline
("Guideline") § 3D1.2(d),2 Probation grouped together Carmona's
convictions under §§ 922(g) and (o) for purposes of calculating
his Guidelines sentencing range. Applying Guideline § 2K2.1,
Probation set Carmona's base offense level at 22 based on Carmona's
new offense having involved a machinegun and on Carmona's having
committed the new offense "subsequent to sustaining one felony
conviction of either a crime of violence or a controlled substance
offense" -- namely, his prior §§ 922(g) and (o) convictions,
which, per Guideline § 3D1.2(d), also counted together as one
offense. Probation then subtracted three levels for Carmona's
acceptance of responsibility per Guideline § 3E1.1, leaving
Carmona with a total offense level of 19.
2Because Carmona's PSR was prepared in August 2021, unless
otherwise noted, our citations to the Guidelines are to the 2018
edition, which was then in effect.
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Probation determined Carmona's criminal history category
to be III. In making that determination, Probation accounted for
the prior §§ 922(g) and (o) convictions and, per Guideline
§ 4A1.1(d), added two criminal history points to reflect that
Carmona had committed the new offense while he was serving a
"criminal justice sentence" -- specifically, the term of
supervised release that he was serving based on his prior
§§ 922(g) and (o) convictions. Based on an offense level of 19
and a criminal history category of III, Probation determined that
Carmona's Guidelines sentencing range was thirty-seven to
forty-six months' imprisonment. See U.S.S.G. ch. 5, pt. A
(sentencing table).
Carmona's PSR also described an incident that had
occurred on February 26, 2019, after Carmona had been transferred
from U.S. Bureau of Prisons ("BOP") custody to a halfway house to
serve the balance of the prison sentence he had received for his
prior §§ 922(g) and (o) convictions. On that date, a halfway house
employee had conducted a pat-down of Carmona as he had returned to
the facility, felt a "hard object near [Carmona's] groin area,"
and requested that Carmona display the object. Carmona,
"disobey[ing] the direct order" and walking away from the employee,
had allegedly shouted, "This fucking bald guy thinks I have
something, wait until I get to him on the streets." As a result
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of this incident, Carmona had been removed from the halfway house
and returned to BOP custody.
The parties then submitted sentencing memoranda to the
District Court. Carmona's sentencing memorandum requested a total
sentence of thirty-seven months' incarceration and argued that
"there [were] no aggravating facts relating to the offense in this
case that [were] not fully addressed by the applicable [S]entencing
[G]uideline." Carmona's sentencing memorandum also cited to
eighteen "cases with similarly situated defendants . . . who
received a Guidelines[] sentence in [the District of Puerto Rico]
for convictions under 18 U.S.C. § 922(o)" for possession of a
machinegun, all of whom were sentenced to between twelve and
thirty-three months' incarceration, and reminded the District
Court of its obligation under 18 U.S.C. § 3553(a)(6) to consider
at sentencing "the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found guilty
of similar conduct."
The government's sentencing memorandum advocated for a
sentence of forty-six months' incarceration. Citing to our prior
statement in United States v. Flores-Machicote, 706 F.3d 16, 23
(1st Cir. 2013), that "the incidence of particular crimes in the
relevant community appropriately informs and contextualizes the
relevant need for deterrence" in sentencing, the government urged
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the District Court in sentencing Carmona to "take in[to]
consideration the problem of gun violence in Puerto Rico."
In support of its position, the government cited to
statistics regarding the prevalence of firearms offenses in Puerto
Rico compared to the rest of the United States, the relatively
high percentage of murders in Puerto Rico involving firearms, and
the fact that a 2019 study by InSight Crime had ranked San Juan
the second-deadliest city in Latin America. The government also
argued that Carmona had demonstrated an "affinity for loaded
machine guns, large quantities of ammunition and extended
magazines." In support of that assertion, the government pointed
to Carmona's prior §§ 922(g) and (o) convictions, as well as
photographs obtained from Carmona's cell phone that purportedly
showed him posing with firearms. The government further submitted
that Carmona's commission of a second machinegun offense after
receiving a sentence for his first machinegun offense that was
"similar . . . to the one[s] cited by the defense in its list of
comparable sentences in this District for first[-time] offenders"
indicated that he "did not avail himself of the prior sentence and
term of supervised release previously imposed by the Court."
Carmona filed a response to the government's sentencing
memorandum. In the response, he objected to the government's
reliance on "faulty" and outdated statistics concerning Puerto
Rico's problem of gun violence. Carmona also asserted that he was
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being sentenced for "a simple gun possession offense" and
argued -- based on our prior decisions in United States v.
Rivera-Berríos, 968 F.3d 130 (1st Cir. 2020) and United States v.
Carrasquillo-Sánchez, 9 F.4th 56 (1st Cir. 2021) -- that for a
simple machinegun possession offense the District Court was not
permitted to rely at sentencing on the "generic consideration of
purported gun violence in Puerto Rico."
On August 19, 2021, the District Court convened a hearing
to sentence Carmona for his new §§ 922(g) and (o) convictions. At
the hearing, defense counsel argued that Carmona's was "an ordinary
machine gun case." Defense counsel argued that Carmona's case was
"ordinary" because his Guidelines sentencing range accounted for
his full "nature and history": his total offense level included an
upward adjustment for his prior §§ 922(g) and (o) convictions, and
his criminal history category was also increased to reflect that
he had been on supervised release for the prior §§ 922(g) and (o)
convictions when he committed the new machinegun possession
offense.
The District Court and defense counsel then engaged in
a colloquy about the permissibility of imposing an upwardly variant
sentence based on the District Court's "societal concern" about
the "dangers posed by machine guns." Defense counsel argued that
because the amount of ammunition with which Carmona had been found
was comparable to the amounts of ammunition at issue in
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Rivera-Berríos and United States v. García-Pérez, 9 F.4th 48 (1st
Cir. 2021), Carmona's conduct was "entirely consistent with simple
possession of a machine gun as found by the First Circuit."
Defense counsel acknowledged that those same cases stood
for the proposition that "community-based factors can be a proper
deterrent consideration," but emphasized that that was so only if
the sentencing court "assessed [those community-based factors] in
case[-]specific terms." And, defense counsel argued, because
Carmona had simply possessed the machinegun and ammunition, was
not found to have used the machinegun, had no criminal history
other than his prior §§ 922(g) and (o) convictions, and had
"admitted to the possession of the weapon for purposes of
protecting himself," his case was not "akin to anything that is
involved in the societal harm that this Court is worried about"
with regard to the rate of gun violence in Puerto Rico.
This colloquy culminated in the following exchange:
District Court: Well, wait a minute. He's done it
twice. He's done it twice.
[Defense Counsel]: Yes.
District Court: His previous case was exactly the
same as this one, possession of a
machine gun.
[Defense Counsel]: That's right. And that's taken into
account in the [G]uidelines.
District Court: Yes, but I'm saying that, you know,
that shows the problem that there is
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out there with young people with
illegal machine guns.
[Defense Counsel]: And that's why it's factored into
the offense level, as well as his
Criminal History Category. . . . So
all of the concerns that the Court
has . . . all of those things are
already built into and taken into
account when fashioning and when
they formulated the [Guidelines]
and the range. So that's why, when
I started off with my argument, I
said this is an ordinary machine gun
case. This is. Everything about
this case, everything about
[Carmona's] nature and history,
everything about the nature and
circumstances of the offense,
everything.
District Court: Well, no.
[Defense Counsel]: Everything is taken into account.
District Court: I think what the Circuit has held is
that in -- an ordinary machine gun
case is a case where someone
possesses a machine gun and really
has no criminal history.
[Defense Counsel]: Which case is that?
District Court: All the ones that you've cited in
your sentencing memorandum.
[Defense Counsel]: The cases I cited in my sentencing
memorandum were for the purposes of
trying to show the Court that
there's sometimes a disparity.
District Court: Yes, but they may be ordinary . . .
machine gun cases[] because they're
all either no criminal history,
which -- and the other ones that you
cite that had a prior conviction,
they were all Criminal History I,
- 9 -
except for two of them, which were
Criminal History Category II.
[Defense Counsel]: Yes. And that's why, when I made my
recommendation to the Court about
what I felt was a reasonable and
appropriate sentence, that -- I
believe that my recommendation is
higher than all of those cases that
I cited.
District Court: No. Well, not really. It's higher,
because the criminal history is
higher.
The government thereafter advocated for a prison
sentence of forty-six months. The government argued that "in this
case, what we have [are] very specific facts that are tied directly
to gun violence in Puerto Rico." The government noted that "[t]his
[was] the second time that this defendant ha[d] been arrested on
a public thoroughfare, on streets with a machine gun." The
government also pointed to the 2019 halfway house incident,
asserting that it was "very clear that 'wait until I get to him on
the streets' [was] a threat" and pointing out that "[t]he streets
[were] where the defendant in this case was seen by a policeman
carrying a machine gun." The government argued as well that 74
percent of "firearm murders on this island are committed on public
throughways" and that of the "367 murders [in Puerto Rico] this
year, [fifty-one] more than last year, . . . according to police
statistics, over [ninety] percent of those are with guns." As
such, the government contended, "numerous specific details about
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this case, the specific characteristics of this defendant's
arrest, the kinds of firearms, where those firearms are found[,]
. . . publicly available statistics from the Police of Puerto Rico
about . . . where firearm violence occurs, [and] the fact that
this defendant made violent threats to an individual in a halfway
house, when he should have been on his best behavior" all
"support[ed] the sentence recommended by the government."
At sentencing, the District Court first calculated
Carmona's Guidelines sentencing range and stated that it had "also
considered the other sentencing factors set forth in" 18 U.S.C.
§ 3553(a). Then, noting that Carmona "was in possession of a
loaded Glock pistol . . . modified to operate as a machine gun"
and that "[o]ther photos show [his] affinity to firearms," the
District Court stated the following:
A modern machine gun can fire more than a
thousand rounds a minute, which allows a
shooter to kill dozens of people within a
matter of seconds. Short of bombs, missiles,
and biochemical agents, the Court can conceive
of few weapons that are more dangerous than
machine guns. A machine gun is unusual, and
outside of a few government related uses,
machine guns largely exist on the black
market. In short, machine guns are highly
dangerous and unusual weapons that are not
typically possessed by law abiding citizens
for lawful purposes. This is Mr. Carmona's
second offense for illegally possessing a
firearm, a machine gun, to be exact.
The District Court went on to describe the 2019 halfway
house incident, noting that Carmona "was transferred to the
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[f]ederal [p]rison . . . because he threatened an employee of the
halfway house." The District Court asserted that "[i]t appears
that [thirty] months of imprisonment for the previous case had no
effect on Mr. Carmona, and that he has made no effort to
rehabilitate himself."
The District Court continued that Carmona "has
demonstrated a lack of remorse for his wrongdoing, and a lack of
respect for the law and this Court. He committed the same crime
for which he was previously sentenced, and the Court has to say it
is not nice to commit the same offense twice." The District Court
next noted that § 3553(a) "requires the Court to consider
preventing criminal behavior by the population at large," that
"the [United States] Sentencing Commission has found [that] longer
sentences involving firearms have [a] deterren[t] effect," and
that "during this year, more murders have been committed in Puerto
Rico than were . . . committed at this time last year."
Finally, the District Court announced that "in this
case, because of the factors that have been mentioned by the Court,
a sentence above the [G]uideline range reflects the seriousness of
the offenses, promotes respect for the law, protects the public
from further crimes by Mr. Carmona, and addresses the issues of
deterrence and punishment." The District Court then imposed
concurrent sentences of sixty months' incarceration for each of
Carmona's new § 922 convictions -- which was a prison sentence
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fourteen months above Carmona's Guidelines sentencing range -- to
be followed by three years of supervised release.
Defense counsel objected to both the procedural and
substantive reasonableness of the sentence, arguing that the
District Court had not given "case-specific reasons for the
variance of such a magnitude," had "failed to give proper treatment
[to] the mitigating factors," and had "failed to adequately explain
the chosen sentence." On the Statement of Reasons form explaining
Carmona's sentence, the District Court enumerated the bases for
its imposition of an upwardly variant sentence. The listed reasons
were: "the lack of respect for the law, the lack of remorse as the
defendant committed the exact same offense after he was sentenced
to a [thirty-]month incarceration period[,] [t]he seriousness of
the offense, the fact that this district is suffering from much
gun violence, specifically machineguns like the one Mr. Carmona
had," and that "sentencing the defendant to [sixty] months was
enough deterrence since lengthy sentences represent more
deterrence than short sentences."
On the same day that Carmona was sentenced for his new
§§ 922(g) and (o) convictions, the District Court held a second
hearing to impose a sentence for the revocation of the term of
supervised release that Carmona had been serving for his prior
§§ 922(g) and (o) convictions. Defense counsel requested a
sentence of thirty days' incarceration to be served concurrently
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with Carmona's sixty-month prison sentence for the new
§§ 922(g) and (o) convictions; the government requested a sentence
of two years' incarceration -- the statutory maximum for the
revocation of supervised release for a § 922(o) conviction, see 18
U.S.C. §§ 3583(e)(3), 924(a)(2), 3559(a)(3) -- to be served
consecutively.
Applying Guidelines §§ 7B1.1–1.4, the District Court
determined that Carmona had committed a Grade A violation of his
term of supervised release, which, combined with Carmona's
criminal history category of I (as calculated at the time of
sentencing for his prior §§ 922(g) and (o) convictions), yielded
a Guidelines sentencing range of twelve to eighteen months'
incarceration. Taking into account "the factors set forth in . . .
Section 3553(a), and the seriousness of Mr. Carmona's violation"
and noting that the revocation of supervised release had been
prompted by "Mr. Carmona's second indictment for the same
charge[s], being a prohibited person in possession of a firearm,
and in possession of a machine gun, and ammunition, and magazines,"
the District Court concluded that "a statutory sentence is a
sentence sufficient but not greater than necessary" to fulfill the
purposes of sentencing. The District Court then imposed an
upwardly variant, statutory maximum term of two years'
imprisonment for the revocation of Carmona's supervised release,
to be served consecutively to the sixty-month sentence it had
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imposed for Carmona's new §§ 922(g) and (o) convictions, followed
by a two-year term of supervised release to be served concurrently
with the three-year supervised release term for his new
§§ 922(g) and (o) convictions. Carmona objected to the revocation
sentence as procedurally and substantively unreasonable.
Carmona timely appealed the imposition of both
sentences, and the appeals were consolidated.
II.
Our review of preserved sentencing challenges is for
abuse of discretion. United States v. Dávila-Bonilla, 968 F.3d 1,
9 (1st Cir. 2020). Where a defendant raises claims of both
procedural and substantive unreasonableness in sentencing, "first
we see if 'the sentence is procedurally reasonable (that is, free
from non-harmless procedural error)' and then we see if 'it is
substantively reasonable.'" Id. (quoting United States v. Nuñez,
840 F.3d 1, 4 (1st Cir. 2016)).
In reviewing claims of procedural unreasonableness, we
apply a "multifaceted" abuse of discretion standard. United States
v. Reyes-Torres, 979 F.3d 1, 7 (1st Cir. 2020) (quoting United
States v. Nieves-Mercado, 847 F.3d 37, 42 (1st Cir. 2017)). In
doing so, we review de novo the resolution of issues of law,
including interpretation and application of the Guidelines. Id.We review for clear error, however, findings of fact. Id.- 15 -
As to the question of substantive reasonableness, "[a]
sentence is substantively reasonable so long as the sentencing
court has provided a 'plausible sentencing rationale' and reached
a 'defensible result.'" United States v. Sayer, 916 F.3d 32, 39
(1st Cir. 2019) (quoting United States v. Martin, 520 F.3d 87, 96
(1st Cir. 2008)). Our review of substantive reasonableness "is
limited to determining whether [the district court's] sentence,
'in light of the totality of the circumstances, resides within the
expansive universe of reasonable sentences.'" United States v.
Rossignol, 780 F.3d 475, 477 (1st Cir. 2015) (quoting United States
v. King, 741 F.3d 305, 308 (1st Cir. 2014)). When a sentencing
court imposes an upwardly variant sentence, "its reasons for doing
so 'should typically be rooted in either the nature and
circumstances of the offense or the characteristics of the
offender,'" and "the factors deemed relevant by the sentencing
court 'must add up to a plausible rationale' for the sentence
imposed and 'must justify a variance of the magnitude in
question.'" Flores-Machicote, 706 F.3d at 21 (quoting Martin, 520
F.3d at 91).
III.
We begin with Carmona's challenges to the upwardly
variant sixty-month prison sentence that he received for his most
recent convictions under §§ 922(g) and (o). After considering his
procedural unreasonableness challenges to this sentence and
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finding no merit to any of them, we turn to his substantive
unreasonableness challenge to the sentence. See Dávila-Bonilla,
840 F.3d at 9. We conclude that that challenge is also meritless.
A.
1.
Carmona first argues that the sixty-month prison
sentence he received for his new §§ 922(g) and (o) convictions was
procedurally unreasonable because the District Court made an error
of law that "tainted the rest of" the sentencing rationale. He
bases this contention on the District Court's statement at one
point during the sentencing hearing that "an ordinary machinegun
case is a case where someone possesses a machinegun and really has
no criminal history." Carmona contends that this statement
revealed the District Court's "fundamental misunderstanding of the
law: that a mine-run § 922(o) case is a case in which the defendant
has no criminal history."
Carmona correctly points out that it is well-settled law
that "[t]he [S]entencing [G]uidelines are meant to cover the
mine-run of particular crimes." Rivera-Berríos, 968 F.3d at 137
(citing Spears v. United States, 555 U.S. 261, 264 (2009) (per
curiam)). He is also right that a "mine-run" case is one that
falls into the "heartland" of cases "to which the [Sentencing]
Commission intends individual Guidelines to apply." Spears, 555
U.S. at 264 (cleaned up).
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Against this backdrop, Carmona contends that the
District Court clearly misstated the law by asserting, in a portion
of a more fulsome statement, that "an ordinary machine gun case is
a case where someone possesses a machine gun and really has no
criminal history" (emphasis added). A § 922(o) offense can be
"mine-run," Carmona explains, even if the defendant has a prior
criminal background.
In fact, Carmona claims, his was "a mine-run case
precisely because [he] was previously convicted of the same
offense, a factor already accounted for" in his Guidelines
sentencing range. After all, Carmona notes, his prior
§§ 922(g) and (o) convictions both contributed to his criminal
history category of III and increased his base offense level by
two points to reflect his prior conviction for "either a crime of
violence or a controlled substance offense."
We do not disagree that the Guidelines expressly account
for a machinegun-possession-related offense having been committed
by a person with a criminal history. We thus do not disagree that
the Guidelines yield a recommended sentencing range for such a
"mine-run" offender. See Sent'g Table, U.S. Sent'g Guidelines
Manual ch. 5, pt. A (U.S. Sent'g Comm'n 2023) (accounting for
criminal history categories I-VI). But to determine whether the
District Court was laboring under a contrary understanding -- as
Carmona contends is the case -- we must consider the statement by
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the District Court that is at issue in its full context and not in
isolation. United States v. Lanza-Vázquez, 799 F.3d 134, 143 (1st
Cir. 2015). When we do, we cannot say that the statement by the
District Court on which Carmona seizes reflects a mistaken view of
the law.
The colloquy during which the District Court made the
assertedly problematic statement -- "an ordinary machinegun case
is a case where someone possesses a machinegun and really has no
criminal history" -- is best understood to concern our line of
cases exemplified by Rivera-Berríos and García-Pérez and not, in
general, what constitutes a mine-run machinegun possession
offense. During the colloquy, defense counsel was relying on
Rivera-Berríos and García-Pérez to argue that the specific facts
of Carmona's case could not support the District Court's varying
upward based on concerns about machinegun violence in Puerto Rico
because Carmona's conduct was "entirely consistent with simple
possession of a machine gun as found by the First Circuit" in those
cases (emphasis added). In responding to the concern the District
Court expressed with respect to that discussion about
Rivera-Berríos and García-Pérez -- in which the District Court
emphasized that Carmona's "previous case was exactly the same as
this one, possession of a machine gun" -- defense counsel stated,
"[A]ll of these concerns that the Court has, that he's done it
twice . . . are already built into and taken into account when
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fashioning . . . the [Guidelines] and the range. So that's why,
when I started off with my argument, I said this is an ordinary
machine gun case" (emphasis added).
It was only at that point in the colloquy that the
District Court used the specific words -- "an ordinary machine gun
case is a case where someone possesses a machine gun and really
has no criminal history" -- that Carmona contends are problematic.
But Carmona wrenches those words from the fuller statement in which
the District Court made them: "I think what the Circuit has held
is that in -- an ordinary machine gun case is a case where someone
possesses a machine gun and really has no criminal history." And
he also wrenches that fuller statement from the context in which
it was made.
Specifically, the sentencing transcript shows that, in
response to the full statement by the District Court about "what
the Circuit has held," defense counsel asked, "Which case is that?"
and the District Court at that point replied, "All the ones that
you've cited in your sentencing memorandum." The District Court
then went on to explain that those cited cases "may be ordinary
. . . machine gun cases[] because . . . they were all Criminal
History I, except for two of them, which were Criminal History
Category II."
In view of this context, we agree with the government's
characterization of the statement by the District Court that
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grounds this challenge by Carmona. That is to say, we agree that
the statement indicates that the District Court was of the view
that, under the Rivera-Berríos line of cases, it could not rely on
community-based concerns about machinegun violence to vary upward
in an "ordinary" case, and that such a case is one in which no
"special characteristic attributable either to the offender or to
the offense of conviction serves to remove a given case from the
mine-run." Rivera-Berríos, 968 F.3d at 137. And, we also agree
with the government that the statement in question further reflects
the District Court's assessment that Carmona's case was
distinguishable from such an "ordinary" case because -- unlike the
defendants in the Rivera-Berrios line -- Carmona had the "special
characteristic" of having committed not merely a prior offense but
a prior machinegun possession offense. Id.
This understanding of the District Court's statement
about "what the Circuit has held" accords with the District Court's
follow-on statement that the eighteen cases cited by Carmona in
his sentencing memorandum were "ordinary" insofar as the
defendants in those cases had nonexistent or negligible criminal
histories -- and thus were distinguishable from Carmona himself,
who had a prior history of machinegun possession. Indeed, as
Carmona's sentencing memo itself explained, those eighteen cases,
like Rivera-Berríos and García-Pérez, involved defendants who
either had no criminal history or a very minor one. By contrast,
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Carmona had a prior conviction for machinegun possession
specifically and so, to use the District Court's words, had "done
[the underlying offense] twice."
Notably, this conclusion about how to understand the
District Court's statement also accords with the questions that
the District Court later asked of the government during the
sentencing colloquy about Rivera-Berríos and Carrasquillo-Sánchez.
Those questions reflect the District Court's correct understanding
that, under those cases, case-specific factors would need to be
present to justify reliance on community characteristics to
support an upwardly variant sentence in Carmona's case.
We thus are not persuaded that the portion of the
District Court's statement about what constitutes an "ordinary"
case on which Carmona zeroes in demonstrates that the District
Court was relying on a misunderstanding of the relevant law in
imposing the upwardly variant sentence. Rather, from all that we
can tell from the transcript, the District Court understood that
community characteristics can be relied on to support an upwardly
mobile sentence only if they are considered in conjunction with
case-specific factors.
2.
Carmona next contends that the District Court
procedurally erred by basing Carmona's upwardly variant sentence
for his new §§ 922(g) and (o) convictions on four "factors already
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accounted for in his [G]uideline[s] calculation": (1) his previous
§§ 922(g) and (o) convictions; (2) "the dangerous nature of a
machinegun"; (3) the fact that Carmona was on supervised release
at the time of his offense; and (4) "generic, universal concerns
applicable to every machinegun case." Carmona is right to point
out that it is "settled beyond hope of contradiction" within our
Circuit that "when a sentencing court relies on a factor already
accounted for by the [S]entencing [G]uidelines to impose a variant
sentence, [it] must indicate what makes that factor worthy of extra
weight." Rivera-Berríos, 968 F.3d at 136 (quoting United States
v. Díaz-Lugo, 963 F.3d 145, 155 (1st Cir. 2020) (alteration in
original)). But the challenge still fails.
Carmona's criminal history category -- which accounts
for all of a defendant's prior criminal convictions, see U.S.S.G.
§ 4A1.1 -- reflected his prior §§ 922(g) and (o) convictions, as
well as the fact that he was serving a term of supervised release
when he committed the new machinegun possession offense. Moreover,
Carmona's offense level was adjusted to account for a prior "felony
conviction of either a crime of violence or a controlled substance
offense," and so his prior §§ 922(g) and (o) convictions were also
accounted for in that sense. But the District Court's variance
from Carmona's resulting Guidelines sentencing range rested on
more than Carmona's prior criminal history in a general sense, or
even his prior "felony conviction of either a crime of violence or
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a controlled substance offense," because the District Court
emphasized the fact that Carmona's prior convictions had been under
the very same provisions prohibiting machinegun possession by
prohibited persons. Yet, the Guidelines did not account for that
factor in identifying the recommended sentencing range in
Carmona's case. We thus cannot conclude that Carmona's previous
convictions for the same conduct of possessing a machinegun as a
prohibited person was "a factor already accounted for in the
[S]entencing [G]uidelines," such that the District Court was
required to "indicate what ma[de] that factor worthy of extra
weight" in relying on it to justify an upward variance in Carmona's
case. United States v. Fields, 858 F.3d 24, 32 (1st Cir. 2017)
(citing United States v. Zapete-Garcia, 447 F.3d 57, 60 (1st Cir.
2006)).
Indeed, we have previously affirmed the imposition of
upwardly variant sentences for firearms offenses based at least in
part on the defendant's previous conviction for the same or a
similar offense. See, e.g., United States v. Pedroza-Orengo, 817
F.3d 829, 834 (1st Cir. 2016) (affirming an upwardly variant
sentence for a firearm offense where "the district court
highlighted the fact that [the defendant] had committed the instant
offense within a year of his release from incarceration for a prior
firearms offense"). Carmona makes no effort to distinguish his
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circumstances from those at issue in those cases, nor do we see
any basis on which to do so ourselves.
Carmona does also object that the District Court
procedurally erred in imposing an upwardly variant sentence by
relying in part on "the dangerous nature of a machinegun," the
fact that Carmona was on supervised release at the time of the
offense, and "generic, universal concerns applicable to every
machinegun case." Carmona contends that is so because the
Guidelines already account for each of those factors. Carmona
fails to explain, however, why the mere fact that the District
Court gave some weight to those factors in explaining the basis
for the sentence shows that the District Court's sentence was
procedurally unreasonable.
As we have explained, the District Court also based the
sentence in part on the unaccounted-for factor described
above -- namely, Carmona's having previously been convicted of
possessing a machinegun as a prohibited person under
§§ 922(g) and (o). And, given that the District Court identified
that factor in explaining the reason for the variance, we do not
see any basis for concluding that it was procedural error for the
District Court also to refer to these separate factors, as they
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helped to establish the Guidelines sentencing range itself from
which the sentence that was imposed upwardly varied.3
3.
Carmona also claims that the upwardly variant sentence
was procedurally unreasonable because the District Court "fail[ed]
to establish a case-specific nexus between [his] case and its
community concerns" about machinegun violence in Puerto Rico. But
our case law makes clear that "a sentencing judge may consider
community-based and geographic factors" in crafting an appropriate
criminal sentence so long as the sentencing court's "emphasis on
factors that are not specifically tied to either the offender or
the offense of conviction" does not "go too far."
3For the same reason, Carmona's procedural reasonableness
challenge also fails insofar as it is premised on the District
Court's having based the upwardly variant sentence in part on
factors that he argues could not in and of themselves support an
upward variance, including Carmona's history of drug use, the
number of rounds of ammunition at issue, Carmona's employment
status, the 2019 halfway house incident, and photographs included
in the government's sentencing memorandum that allegedly depicted
Carmona brandishing firearms and which the District Court
characterized as "show[ing] Mr. Carmona's affinity to firearms."
Further, by failing to object to the District Court's reliance on
the photographs below, Carmona waived his argument on appeal that
the photographs were "unreliable" because the untimeliness of the
government's sentencing memorandum meant that Carmona could not
"adequately respond" to its contents. See United States v. Slade,
980 F.2d 27, 30 (1st Cir. 1992) ("It is a bedrock rule that when
a party has not presented an argument to the district court, she
may not unveil it in the court of appeals.").
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Flores-Machicote, 706 F.3d at 22-24. The District Court did not
go too far here.
Carmona analogizes his case to our line of decisions in
Rivera-Berríos, Carrasquillo-Sánchez, and García-Pérez. He argues
that because his was a "mere possession" offense, the District
Court's reliance on generalized concerns about machinegun violence
in Puerto Rico was impermissibly "unmoored from any individual
characteristics of either [Carmona] or the offense of conviction."
In each of these cases, the defendant was convicted of unlawful
possession of a machinegun within Puerto Rico and the sentencing
court imposed an upwardly variant sentence after "ma[king]
pellucid that the driving force behind the upward variance . . .
was the nature of the firearm that the [defendant] possessed" in
light of the sentencing court's perception of the problem of
machinegun violence in Puerto Rico. Rivera-Berríos, 968 F.3d at
135.
Those cases are distinguishable from Carmona's. The
sentencing court in each of them pointed to the dangerousness of
machineguns and the problem of machinegun violence in Puerto Rico.
But the sentencing court in each case emphasized "the nature of
the firearm involved in the offense of conviction" while failing
to provide "an explanation as to how [the defendant's] crime
differed from the mine-run of machine gun possession cases within
the contemplation of the sentencing guidelines." Id. at 136; see
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also Carrasquillo-Sánchez, 9 F.4th at 61 ("The District Court was
clear . . . that 'the driving force behind the upward variance'
was, in its own words, 'the possession of this type of weapon'
itself." (internal citation omitted) (quoting Rivera-Berríos, 968
F.3d at 135)); García-Pérez, 9 F.4th at 53–54 ("The District Court
here, just like the district court in Rivera-Berríos . . . failed
to explain why the defendant's machinegun possession 'was entitled
to extra weight.'" (quoting Rivera-Berríos, 968 F.3d at 136)).
Here, by contrast, the District Court did point "in
case-specific terms" to the relevance to Carmona's sentence of its
concerns about machinegun violence rates in Puerto Rico.
Carrasquillo-Sánchez, 9 F.4th at 61 (citation omitted).
Specifically, the District Court relied on the facts that Carmona's
"previous case was exactly the same as this one, possession of a
machine gun," that "he committed this case while serving his
supervised release term" for his previous §§ 922(g) and (o)
convictions, and that the 2019 halfway house incident had resulted
in his return to prison "because he [had] threatened an
employee" -- all of which, in the District Court's view, reflected
Carmona's "lack of respect for the law."
Indeed, the transcript of Carmona's sentencing hearing
reflects that the District Court cited to Carmona's status as a
second-time §§ 922(g) and (o) offender in direct response to
defense counsel's statement that sentencing courts can consider
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such community-based concerns at sentencing so long as "the
defendant's possession of a machine gun had . . . anything to do
with the problem as the Court sees it." The District Court made
the nexus clearer still by stating that Carmona's status as a
second-time §§ 922(g) and (o) offender "show[ed] the problem that
there is out there with young people with illegal machine guns."
Carmona's case is therefore distinguishable from Rivera-Berríos,
Carrasquillo-Sánchez, and García-Pérez insofar as the District
Court here did anchor its reliance on its understanding of Puerto
Rico's machinegun problem within the specific characteristics of
Carmona's offense.4 On this record, then, we conclude that the
District Court did not abuse its discretion in relying partly on
the incidence of firearms offenses in Puerto Rico to impose an
Carmona does advance an alternative argument as to why the
4
District Court erred in relying on statistics about firearms and
violent crime within Puerto Rico that the government included in
its sentencing memorandum. Here, Carmona contends the
untimeliness of the government's sentencing memorandum -- which
was filed one day prior to Carmona's sentencing hearing -- and the
District Court's subsequent denial of Carmona's motion to continue
his sentencing hearing prevented Carmona from adequately refuting
those statistics, such that the government's cited statistics were
"never subject to any adversarial testing" and therefore
unreliable. But because Carmona made no developed argument about
that alleged error in his opening brief, he waived it. See Sparkle
Hill v. Interstate Mat Corp., 788 F.3d 25, 29 (1st Cir. 2015)
("[W]e do not consider arguments for reversing a decision of a
district court when the argument is not raised in a party's opening
brief."); United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
("[I]ssues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived.").
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upwardly variant sentence for Carmona's §§ 922(g) and (o)
convictions.
B.
Having determined that the upwardly variant prison
sentence that Carmona received for his most recent
§§ 922(g) and (o) convictions was procedurally reasonable, we
proceed to consider Carmona's challenge to the substantive
reasonableness of that sentence. Carmona bases this challenge on
his contention that the District Court "failed to give
case-specific reasons for a variance of such magnitude and failed
to adequately explain the chosen sentence." But, for the reasons
we explained above, we do not agree.
The record makes clear that, in imposing an above-
Guidelines sentence, the District Court relied on its belief that
"longer sentences involving firearms have [a] deterrence effect"
only in connection with Carmona's status as a second-time
§§ 922(g) and (o) offender who had, in its opinion, "demonstrated
a lack of remorse for his wrongdoing [and] a lack of respect for
the law and th[e] Court." Based on this record, moreover, we
conclude that Carmona's sixty-month prison sentence, "in light of
the totality of the circumstances, resides within the expansive
universe of reasonable sentences" he could have received for this
offense. Rossignol, 780 F.3d at 477 (quoting King, 741 F.3d at
- 30 -
308). As such, we find no abuse of discretion as to the District
Court's imposition of the sixty-month sentence.5
IV.
We come, finally, to Carmona's challenge to the
substantive reasonableness of the District Court's imposition of
an upwardly variant, statutory maximum two-year term of
incarceration for his revocation of supervised release. Here,
too, we see no abuse of discretion.
Carmona challenges the substantive reasonableness of his
revocation sentence on two grounds: first, that the District Court
impermissibly and "inextricably intertwined the sentence" with the
sentence for his new §§ 922(g) and (o) convictions; and second,
that the sentencing errors that Carmona alleges the District Court
committed in Carmona's new § 922 case "carried over and
contaminated the revocation hearing." It is not entirely clear to
us that either of these grounds is properly deemed a substantive,
5 Carmona also attacks the substantive reasonableness of his
sentence to the extent that the District Court, in imposing the
sentence, considered various other factors that we have enumerated
above. See supra note 2. But "the weighing of those factors is
largely within the [sentencing] court's informed discretion," and
we are not persuaded that the District Court abused that discretion
simply by weighing those factors differently than Carmona would
have had it do. United States v. Clogston, 662 F.3d 588, 593 (1st
Cir. 2011) ("That the sentencing court chose not to attach to
certain of the mitigating factors the significance that the
appellant thinks they deserved does not make the sentence
unreasonable.").
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rather than a procedural, reasonableness challenge. But as we
have noted before, "[t]he line between procedural and substantive
sentencing issues is often blurred," United States v.
Reyes-Santiago, 804 F.3d 453, 468 n.19 (1st Cir. 2015), and the
flaws with each of Carmona's challenges are such that the
challenges would fail regardless of how they are characterized.
As to the first challenge, Carmona points to the
Guideline for revocation sentences, which instructs that "the
court should sanction primarily the defendant's breach of trust,
while taking into account, to a limited degree, the seriousness of
the underlying violation and the criminal history of the violator."
U.S. Sent'g Guidelines Manual, ch. 7 pt. A, introductory cmt. (U.S.
Sent'g Comm'n 2018). He argues that because "[t]here [were] no
aggravating factors in this revocation" that could have justified
the District Court's decision to vary upward six months from
Carmona's Guidelines range of twelve to eighteen months'
incarceration for the revocation, the District Court, in fact,
erroneously sentenced him for the revocation of supervised release
for his first §§ 922(g) and (o) convictions based on the facts of
his new §§ 922(g) and (o) convictions.
We disagree. The conduct that grounded the revocation
was the same type of conduct which had itself grounded the
imposition of the term of supervised release that was being
revoked. As a result, we conclude that the District Court's
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imposition of an upwardly variant two-year prison sentence for a
revocation precipitated by Carmona's recommission of the same
offense was "roughly proportionate to [Carmona's] breach of
trust." United States v. Daoust, 888 F.3d 571, 578 (1st Cir.
2018). Indeed, in pronouncing the sentence for the revocation,
the District Court did note, seemingly referring to the new
§§ 922(g) and (o) convictions, that "[t]his [was] Mr. Carmona's
second indictment for the same charge[s], being a prohibited
person . . . in possession of a machine gun, and ammunition, and
magazines," and that "[a]ccordingly, it [was] the judgment of the
Court" that the statutory maximum term of incarceration on
revocation was appropriate.
As to Carmona's second challenge -- that the District
Court's asserted errors in the prior sentencing proceeding
"carried over and contaminated" Carmona's revocation
sentencing -- we also disagree. As we explained above, Carmona's
allegations of error as to the sentence he received for his new
§§ 922(g) and (o) convictions are without merit. Thus, there was
no abuse of discretion in the District Court's imposition of
Carmona's revocation sentence on account of any errors in that
prior proceeding.
V.
For the foregoing reasons, the judgments of the District
Court are affirmed.
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