United States v. Flores-Gonzalez

United States Court of Appeals
For the First Circuit
No. 19-2204
UNITED STATES OF AMERICA,
Appellee,
v.
EMILIANO EMMANUEL FLORES-GONZÁLEZ,
Defendant, Appellant.
APPEAL 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 Kayatta, Circuit Judges.
Ivan Santos-Castaldo, Research and Writing Attorney, with
whom Eric Alexander Vos, Federal Public Defender, Franco L. Pérez-
Redondo, Assistant Federal Public Defender, Supervisor, Appeals
Division, and Liza L. Rosado-Rodríguez, Research and Writing
Specialist, were on brief, for appellant.
Gregory B. Conner, Assistant United States Attorney, with
whom W. Stephen Muldrow, United States Attorney, and Marina E.
Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate
Division, were on brief, for appellee.
May 16, 2022
THOMPSON, Circuit Judge. Emiliano Emmanuel Flores-
González ("Flores") thinks his 48-month prison sentence entered
after he pled guilty to illegally possessing a machine gun (a
modified Glock pistol) is too long — in legal lingo, he believes
his incarcerative term (which is well below the 10-year statutory
maximum) is procedurally and substantively unreasonable.
Reviewing for abuse of discretion — a multidimensional standard
that requires us to inspect fact findings for clear error and legal
rulings de novo (with fresh eyes, to use plain English), see United
States v. Rivera-Berríos, 968 F.3d 130, 133-34 (1st Cir. 2020) —
we agree with one of his many arguments and so vacate his sentence
and remand for resentencing consistent with this opinion.
I
Criminal sentencing might be the hardest thing district
judges do. See, e.g., United States v. Vixamar, 679 F.3d 22, 34-
35 (1st Cir. 2012). What was once a system of "total judicial
discretion" (letting judges pick whatever sentence they wished,
unless Congress reined in that discretion with statutes setting
minimum or maximum penalties) and then one of "virtually no[]"
discretion "with mandatory [sentencing] guidelines" is now a
regime of "advisory guidelines with discretion for variances and
policy disagreements with the guidelines" (though judges must
- 2 -
still, of course, stay within statutory bounds).1 See Mark W.
Bennett, Addicted to Incarceration: A Federal Judge Reveals
Shocking Truths About Federal Sentencing and Fleeting Hopes for
Reform, 87 UMKC L. Rev. 3, 22 (2018).2 Appellate decisions on the
subject fill volumes of the United States Reports and the Federal
Reporter series.
Developed by the federal sentencing commission — a non-
elected body created by Congress that sits within the judicial
branch, see 28 U.S.C. § 991(a); see also id. § 994(a) — the
guidelines set up a matrix-like regime.3 Roughly speaking, a judge
scores the crime's "base offense level," making adjustments for
certain aggravating or mitigating factors to get the "total offense
level." See United States v. Martínez-Benítez, 914 F.3d 1, 2 n.2
1 "The allowable band of variance is greater" under the new
system than under the old ones, though
intellectual discipline remains vital. "[A]
motion to [a court's] discretion is a motion,
not to its inclination, but to its judgment;
and its judgment is to be guided by sound legal
principles."
See United States v. Kirkpatrick, 589 F.3d 414, 416 (7th Cir. 2009)
(quoting United States v. Burr, 25 F. Cas. 30, 35 (C.C.D. Va. 1807)
(Marshall, C.J.)) (alterations by Kirkpatrick).
2 Former Judge Bennett was a district judge in the Northern
District of Iowa from 1994 to 2019. See Biographical Directory of
Article III Federal Judges — Bennett, Mark W., Federal Judicial
Center, https://www.fjc.gov/history/judges/bennett-mark-w.
3 For more general background on the sentencing commission,
see Mistretta v. United States, 488 U.S. 361, 363-70 (1989).
- 3 -
(1st Cir. 2019). Next the judge scores the defendant's criminal
record to get the "criminal history category" (I through VI).
Turning then to the guidelines' sentencing table, the judge marks
(with his or her fingers, for example) the total offense level on
the table's vertical line and the criminal history category on the
horizontal line, id. — "[w]here the judge's finger[s] stop[], he
or she finds" the defendant's advisory sentencing range, see Albert
W. Alschuler, The Failure of the Sentencing Guidelines: A Plea
for Less Aggregation, 58 U. Chi. L. Rev. 901, 907 (1991). And —
as will become relevant — the judge (while still respecting
statutory limits) can opt to vary from that range based on reasons
tied to a categorical policy disagreement with the guidelines, see
Spears v. United States, 555 U.S. 261, 264 (2009) (per curiam)
(discussing Kimbrough v. United States, 552 U.S. 85, 109 (2007));
United States v. Stone, 575 F.3d 83, 89 (1st Cir. 2009), or to a
"case-specific" appraisal of any applicable sentencing factors in
18 U.S.C. § 3553(a), see Rivera-Berríos, 968 F.3d at 136 (quoting
United States v. Flores-Machicote, 706 F.3d 16, 23 (1st Cir.
2013)).4
4 So although advisory, the guidelines remain the "lodestone"
of federal sentencing. See Peugh v. United States, 569 U.S. 530,
541-44 (2013).
- 4 -
Staying with the § 3553(a) factors, we point out (if you
will forgive a longish quote) that "[t]here are seven" of them:
Factor one is "the nature and circumstances of
the offense and the history and
characteristics of the defendant." 18 U.S.C.
§ 3553(a)(1). Factor two is
the need for the sentence . . . (A)
to reflect the seriousness of the
offense, to promote respect for the
law, and to provide just punishment
for the offense; (B) to afford
adequate deterrence to criminal
conduct; (C) to protect the public
from further crimes of the
defendant; and (D) to provide the
defendant with needed educational
or vocational training, medical
care, or other correctional
treatment in the most effective
manner.
Id. § 3553(a)(2). Factor three is "the kinds
of sentences available." Id. § 3553(a)(3).
Factor four is the
guidelines. Id. § 3553(a)(4). Factor five is
"any pertinent policy statement . . . issued
by the [s]entencing [c]ommission."
Id. § 3553(a)(5). Factor six is "the need to
avoid unwarranted sentence disparities."
Id. § 3553(a)(6). And factor seven is "the
need to provide restitution to any victims."
Id. § 3553(a)(7).
United States v. Correa-Osorio, 784 F.3d 11, 28 n.24 (1st Cir.
2015).5 After picking a sentence, the judge must adequately
5 The judge can also make departures: unlike variances —
which, as we have just seen, result from a judge's assessment of
the § 3553(a) factors — departures "refer[] only to non-
[g]uidelines sentences imposed under the framework set out in the
- 5 -
explain it — identifying the main factors that drove it. See,
e.g., Rivera-Berríos, 968 F.3d at 134. And if the judge gives a
variant sentence, he or she must offer a more thorough
justification: "the greater the deviation," our cases say, "the
greater the burden of justifying the sentence imposed." United
States v. Montero-Montero, 817 F.3d 35, 37 (1st Cir. 2016).
II
Now back to Flores's situation.6
A
Puerto Rico police agents obtained an arrest warrant for
Flores on domestic violence and weapons charges. Having heard
that he would be at a local McDonald's, they stopped him after he
went through the restaurant's drive-thru. Arresting him, they
found a Glock pistol altered to fire automatically, 63 rounds of
ammunition, and a spent shell casing (among other items). And
this incident led to his being charged federally with unlawfully
[g]uidelines." See Irizarry v. United States, 553 U.S. 708, 714
(2008). Because departures play no role here, we leave it at that.
6 Because this appeal follows a guilty plea, we pull the
background information from the probation office's presentence
report and the transcripts of the relevant court proceedings. See,
e.g., Rivera-Berríos, 968 F.3d at 132-33.
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possessing a machine gun, to which he pled guilty. See 18 U.S.C.
§ 922(o).
B
We skip straight to sentencing. Adopting probation's
presentence report, the judge (using the November 2018 edition of
the guidelines) set Flores's base offense level at 20 for
possessing the machine gun as a "prohibited person" because of his
self-admitted drug use, see USSG § 2K2.1(a)(4)(B), but subtracted
3 levels because of his acceptance of responsibility, see USSG
§ 3E1.1(a) — for a total offense level of 17. The judge then
pegged Flores's criminal history category at I (the lowest
category). This left Flores with an advisory prison range of 24
to 30 months.
The defense requested 24 months. The government
proposed 30 months. We will have lots to say later about the
judge's sentence selection. But for now we need only note the
following points. After directing the parties' attention to the
"sentencing factors" in "[§] 3553(a)," the judge discussed how
gun-related "crime in Puerto Rico far exceeds the known limits on
the mainland" and how "[t]he impact of" Flores's "particular
offense is more serious than that considered by the [s]entencing
[c]ommission when it drafted the guidelines"; mentioned some
biographical information (e.g., Flores's earning a "GED"
- 7 -
certificate and his "history of using marijuana"); and recounted
some details about the offense (e.g., the police's confiscating
the Glock, the 63 rounds of ammo, and the spent casing). Convinced
that neither party's suggested sentence "reflects the seriousness
of the offense, promotes respect for the law, protects the public
from further crimes by . . . Flores," or "address[es] the issues
of deterrence and punishment," the judge then imposed a variant
sentence of 48 months — 18 months more than the top of the
recommended sentencing range.
The "Statement of Reasons" form — which sentencing
judges complete under 18 U.S.C. § 3553(c)(2) — included the judge's
comment that "the impact of this [kind of weapon] on the Island is
more serious tha[n] that considered by the [s]entencing
[c]ommission."7 And under the heading "18 U.S.C. § 3553(a) and
Section 3553(c)(2) pertinently says that judges picking
7
sentences "outside the [guidelines] range" must provide the
reasons for the picks "with specificity in a statement of reasons
form." The sentencing commission uses the information in these
documents "to make recommendations to Congress." See United States
v. Morales-Negrón, 974 F.3d 63, 68 (1st Cir. 2020). See generally
United States v. Murchison, 865 F.3d 23, 26 (1st Cir. 2017) (noting
that the bureau of prisons also uses this data to "classif[y] and
process[] sentenced offenders"). A standing order of the district
court provides that probation shall fill out these forms based on
the judges' in-court comments and send them to the judges for final
approval, see Morales-Negrón, 974 F.3d at 68 — apparently as a way
to "streamline" the process, see Standing Order No. 17-205 (Apr.
28, 2017) (adding as well that judges "shall" give the parties
sealed copies of these documents on request).
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other reason(s) for a variance (Check all that apply)," three boxes
were checked: to protect the public, to deter others from copying
the crime, and to reflect how serious the crime was. Among the
boxes left unchecked was one labeled "Policy Disagreement with the
Guidelines (Kimbrough v. U.S., 552 U.S. 85 (2007)."8
From this sentence Flores appeals.
III
Of the many arguments Flores makes, only a couple require
discussion. We begin with a losing contention and end with a
winning one.
A
1
Flores insists that the judge procedurally erred with
the prohibited-person finding. As he correctly notes, a prohibited
person in this context is someone "who engages in . . . regular
use" of drugs "over a long period . . . proximate to or
contemporaneous with the possession of the firearm." See United
States v. Caparotta, 676 F.3d 213, 216 (1st Cir. 2012) (quotation
marks omitted). Focusing on the "long period" language, he
Granting Flores's request for access to the statement of
8
reasons, the judge's electronic order says that "the transcript of
the sentencing hearing is the official document and sets forth the
[c]ourt's reasoning for the sentence imposed." But the fact
remains that the judge left the box blank, despite having had the
opportunity to check it.
- 9 -
contends that because he admitted only to "a few months of drug
use," his situation does not fit this definition. The government
counters that the record readily supports the judge's finding.
2
The government has the better of the argument. During
pretrial interviews, Flores — who was 19 when nabbed — copped to
smoking 4 or 5 marijuana joints daily since he was 17 and to having
smoked before his arrest. On the eve of sentencing, however, he
claimed in a presentence interview that he only smoked regularly
during the three months before his arrest. Probation suggested,
at least implicitly, that Flores did this about-face only because
he now realized that he could get a prohibited-person increase to
his sentence. The judge accepted probation's position, thus
triggering clear-error review.
It is seldom easy to establish clear error. See, e.g.,
United States v. Rivera-Carrasquillo, 933 F.3d 33, 42 (1st Cir.
2019), cert. denied, 140 S. Ct. 2691 (2020). So it is here. That
is because even assuming — without granting — that using marijuana
for three months is not enough for prohibited-person status and
that the late-in-the-game comment about the three months of
marijuana use turns on a plausible view of the record, we think
the judge's view is not implausible given Flores's earlier
admissions about toking daily for years. See United States v.
- 10 -
Marceau, 554 F.3d 24, 30-31 (1st Cir. 2009) (upholding a
prohibited-person increase where, "even after [a] stay at a drug
treatment facility," the defendant "was unable to remain drug-
free" and where he admitted to "smok[ing] marijuana daily in the
days before" his crime). And if "there is more than one plausible
view of the circumstances, the [judge's] choice among supportable
alternatives cannot be clearly erroneous." See United States v.
Dunston, 851 F.3d 91, 101-02 (1st Cir. 2017) (quoting United States
v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990)).
B
1
We move then to Flores's next claim of procedural error,
which is that in saying the § 3553(a) factors justified the upward
variance, the judge gave too much weight to the prevalence of gun
violence in Puerto Rico and failed to custom tailor the sentence.
In support, he points to the judge's repeated reference to guns in
Puerto Rico — highlighting some of the following statements (we
mentioned a couple already), all pulled from a section of the
sentencing transcript where the judge brought up § 3553(a):
• "[C]rime in Puerto Rico far exceeds the known limits on the
mainland. Even the [First] Circuit . . . has recognized
that."
• "Violent crime and murders are occurring at all hours of the
day, in any place on the island, even on congested public
highways, in shopping centers, public basketball courts, and
at cultural events."
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• "Machine guns, like the one . . . Flores possessed in this
case, are present everywhere, obtained by persons, like . . .
Flores, who have had no training in the proper use of weapons
and who appear not to have the means to purchase them."
• "The [First Circuit] has stated that a District Court may
take into consideration, for sentencing purposes, the
community and geographic factors where the offense took
place. In this District, for this type of weapon crime, the
community that the [c]ourt takes into consideration is the
entire island of Puerto Rico because weapons crimes are not
limited to one particular area or region of the Commonwealth."
• "The impact in Puerto Rico of this particular offense is more
serious than that considered by the [s]entencing [c]ommission
when it drafted the guidelines."
• "Deterrence is an important factor in the sentencing
calculus, and [§] 3553(a) requires the [c]ourt to consider
preventing criminal behavior by the population at large, not
just by the defendant being sentenced."
• "The [c]ourt does not purport to establish that . . .
Flores'[s] crime itself was more harmful than others similar
to his, but that his crime falls within a category of
offenses, gun crimes, that the [c]ourt, considering the
particular situation in Puerto Rico, views as more serious
here than if they had occurred in a less violent society."
• "A modern machine gun can fire more than a thousand rounds
per minute which allows a shooter to kill dozens of people
within a matter of seconds."
• "A machine gun is unusual. And outside of a few [g]overnment-
related uses, machine guns largely exist on the black market."
Flores then talks up Rivera-Berríos (the district judge there and
the one here are the same, by the way). Rivera-Berríos held that
the judge's concerns about machine guns "are universal in their
application" and already worked "into the mix when the [s]entencing
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[c]ommission set the base offense level," and that he focused too
much on the community and too little on the individual in trying
to explain why the defendant's situation differed from the usual
case covered by the guidelines (a deeper dive into Rivera-Berríos
is coming). See 968 F.3d at 136-37. Putting all this together,
Flores contends that because the guidelines already accounted for
the factor his judge depended on (that the crime involved a machine
gun) and because the record lacks any basis for giving that factor
added weight, we must vacate his sentence.
Trying to shift the focus of the debate, the government
principally argues that the judge varied from the guidelines
because he disagreed with them on policy grounds — something (we
repeat) the Supreme Court has said district judges can do. See,
e.g., Kimbrough, 552 U.S. at 109-11. This phenomenon — a variance
based on a categorical policy disagreement with the sentencing
commission, rather than on a case-specific assessment of the
§ 3553(a) factors — is known as a "Kimbrough variance." See United
States v. Santiago-Colon, 918 F.3d 223, 227 (1st Cir. 2019)
(quoting Stone, 575 F.3d at 93). To bolster its theory, the
government spotlights the judge's statements that "[t]he impact in
Puerto Rico of this particular offense is more serious than that
considered by the [s]entencing [c]ommission when it drafted the
guidelines" and that "the particular situation in Puerto Rico" is
- 13 -
"more serious" than if the offense "had occurred in a less violent
society." Wrapping up, the government writes that because Rivera-
Berríos did not involve a Kimbrough variance, we must "reject
Flores's outsized reliance on that case."
29
The government's argument touches on an interesting
issue. To resay (for convenience), district judges can
discretionally vary sentences in two ways: by categorically
disagreeing with the suggested guidelines range — i.e., by balking
on a basis applicable to all defendants, "Eagle Scout[s]" and
"street thug[s]" alike (for example);10 or by making an
individualized appraisal of the § 3553(a) factors — i.e., by
considering the particular characteristics of the defendant and
the particular offense conduct. See generally Kimbrough, 552 U.S.
at 108-10 (noting that judges can vary from the commission's
recommendations categorically, as well as in particular cases);
see also Spears, 555 U.S. at 264 (emphasizing that Kimbrough
recognizes the "authority" that district judges have "to vary from
the [at-issue guidelines] based on policy disagreement with them,
and not simply based on an individualized determination that they
9As a heads up, Chief Judge Barron does not join this section,
III.B.2.
10See United States v. Gully, 619 F. Supp. 2d 633, 643 (N.D.
Iowa 2009).
- 14 -
yield an excessive sentence in a particular case"). But judges
too often "blend" these "different types of variances together,"
see Scott Michelman & Jay Rorty, Doing Kimbrough Justice:
Implementing Policy Disagreements with the Federal Sentencing
Guidelines, 45 Suffolk U. L. Rev. 1083, 1084 (2012), "masking their
categorical policy disagreements as 'individualized
determinations,'" to quote the Supreme Court — a routine condemned
by the Court as "institutionalized subterfuge" (strong words,
indeed), see Spears, 555 U.S. at 266.11 A possible reason for this
blending might be that Supreme Court caselaw occasionally divides
sentence selection into two steps: calculating the advisory range
(which lays the foundation for the sentence), then reviewing the
§ 3553(a) factors (some of which mention policy, e.g., the need to
consider the sentencing commission's "pertinent policy
statement[s]"; others of which mention offender-based concerns,
e.g., the need to ponder the defendant's characteristics and
history, plus the seriousness of the crime), see Gall v. United
States, 552 U.S. 38, 49-50 (2007) — without explicitly including
a step for Kimbrough variances. See Doing Kimbrough Justice, 45
Suffolk U. L. Rev. at 1087, 1097-1101.
11For simplicity's sake, the remainder of the opinion will
refer to the just-cited article — a studied and thoughtful
treatment of the subject, penned by authors who live and breathe
these issues — as "Doing Kimbrough Justice."
- 15 -
But whatever the reason (or reasons), the problems
caused by blending discretionary variances cannot be exaggerated.
Blending makes it harder for district judges "to exercise fully
each type of discretion available" under modern sentencing
practices (for example), see id. at 1084 — in other words, when
judges apply "policy . . . and individualized considerations" at
the same time, a defendant gets "only one" shot at "a variance,
and so all of the factors may be thrown together in a way that
does not allow full expression of each," see id. at 1112. Also,
and as previously noted, judges must adequately explain why they
chose a sentence to promote "meaningful appellate review" and "the
perception of fair sentencing." See Gall, 552 U.S. at 50.
Blending masks the judges' sentencing reasoning (as we just said),
thus frustrating these all-important reviewability and fairness
goals. See Doing Kimbrough Justice, 45 Suffolk U. L. Rev. at 1108-
09. Critically too, because judges must take the guidelines "into
account when sentencing," see United States v. Booker, 543 U.S.
220, 264 (2005), the sentencing commission continually updates
them to "encourag[e] . . . better sentencing practices" and
"uniformity in the sentencing process," see id. at 263; see also
Kimbrough, 552 U.S. at 108 (emphasizing that "Congress established
the [c]ommission to formulate and constantly refine national
sentencing standards"). And the commission does this by reviewing
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"empirical" data reflecting the combined experiences of judges
across the country. See Rita v. United States, 551 U.S. 338, 349-
50 (2007); see also Neal v. United States, 516 U.S. 284, 291 (1996)
(emphasizing that "Congress . . . charged the [c]ommission with
the duty to measure and monitor the effectiveness of various
sentencing, penal, and correctional practices"). But masking the
"grounds for [a] variance" (unsurprisingly) keeps "vital
information" from the sentencing commission "about how the
[g]uidelines can be improved." See Doing Kimbrough Justice, 45
Suffolk U. L. Rev. at 1084.
Consider this example of how a "large-scale sentencing
reform[] gr[e]w organically from seeds sown by the district
courts." See id. at 1109. The guidelines once had a 100-to-1
ratio for crack to powder cocaine — meaning the guidelines treated
each gram of crack as 100 grams of powder cocaine. See Kimbrough,
552 U.S. at 91. Kimbrough said that district judges can drop below
the guidelines in crack cases (provided they do not drop below a
statutory minimum sentence) based on a policy beef with the
crack/powder ratio. See id. at 102-11. Judges and the sentencing
commission have "discrete institutional strengths," Kimbrough
explained. Id. at 109. Judges better know the particular
defendants before them "than the [c]ommission or the appeals
court[s]" and so are better positioned to apply the § 3553(a)
- 17 -
factors "in each particular case." Id. (quoting Rita, 551 U.S. at
357-58). The sentencing commission's expertise is mainly
"empirical," having as it does the knowledge, experience, and
workforce to make estimates about the reasonable punishment ranges
for the at-issue crimes. See id. (quoting United States v. Pruitt,
502 F.3d 1154, 1171 (10th Cir. 2007) (McConnell, J., concurring)).
And these differences affect the degree of respect due a judge's
decision to vary: in cases "outside" the guidelines's "heartland,"
decisions to vary "may attract greatest respect" — but in "mine-
run" cases, Kimbrough noted, "closer review" may be necessary if
the judge varies "based solely on" a policy disagreement with the
guidelines. See id. Importantly too, though, when the sentencing
commission settles on a policy choice for reasons beyond its
expertise, the resulting guideline may be attacked on that basis.
See id. That is precisely what happened in Kimbrough, where the
crack/powder ratio did not reflect the commission's usual method
of relying on "empirical data and national experience," see id. —
the commission had cribbed the ratio from an inapplicable statute
and so the ratio could not even be ascribed to Congress, see id.
at 102-03, 109.
After Kimbrough, some judges chose to vary from the crack
guidelines for policy reasons. See generally Spears, 555 U.S. at
264-66 (upholding a district judge's categorical policy
- 18 -
disagreement with the 100-to-1 ratio and use of a substitute 20-
to-1 ratio). And their objections — e.g., that this ratio had
racially discriminatory effects — helped bring about statutory and
guidelines changes. See Doing Kimbrough Justice, 45 Suffolk U. L.
Rev. at 1109-10. But had they "kept their concerns about the
fairness of [the crack/powder ratio] swaddled in the language of
individual offender characteristics, a powerful and empirically
based voice for reform would have been muted and the momentum for
[these changes] might not have materialized." See id. at 1110.
See generally Rita, 551 U.S. at 358 (noting a judge's explanation
"can provide relevant information to both the court of appeals and
ultimately to the [s]entencing [c]ommission," which will aid
appellate review and will "help the [g]uidelines constructively
evolve over time").
With that in mind, and as a general antidote to masking,
some judges and criminal-law experts propose "separat[ing] the two
types of variances" into distinct steps where appropriate (more on
that next): after calculating the advisory guidelines range,
judges would recalculate it based on any Kimbrough policy variance
and then (using the recalculated range, if any there be) decide
whether to vary up or down based on a case-specific analysis of
the § 3553(a) factors. See Doing Kimbrough Justice, 45 Suffolk U.
L. Rev. at 1108.
- 19 -
3
The point to decide up front is whether the judge varied
based on a Kimbrough-sanctioned objection to the guidelines
categorically. Again, the government says the judge did; Flores
says the judge did not. The government's basic position boils
down to this syllogism: (1) Judges varying from a commission-
suggested range based solely on a community characteristic of the
crime's locale are exercising their authority to disagree with the
range itself. (2) Kimbrough says that judges can disagree with
the commission (but not with a statute, and they must act
reasonably in using that power). (3) Therefore, Kimbrough means
— contrary to Rivera-Berríos — that judges can vary based solely
on a community characteristic of the crime's locale (subject to
the caveats listed in the preceding parenthetical).12 We, like
Flores, are unconvinced.
To be fair, a recent case of ours dropped a footnote
suggesting the possibility that a variant sentence driven solely
by this kind of community characteristic might be a Kimbrough
For what it is worth, the government insists that the judge
12
made a Kimbrough variance even though (as we said above) the judge
left the "Policy Disagreement with the Guidelines (Kimbrough v.
U.S., 552 U.S. 85 (2007)" box blank on the written statement of
reasons.
- 20 -
variance. See United States v. Carrasquillo-Sánchez, 9 F.4th 56,
61 n.2 (1st Cir. 2021). But the answer to that suggestion is no.
Concerned about disparate sentences on like facts under
the old regime, Congress tasked the sentencing commission with
"establish[ing] sentencing policies for the Federal criminal
justice system." See 28 U.S.C. § 991(b)(1) (emphases added). The
commission knows that any actual crime will be committed only in
a particular place, at a particular time, in a particular way, and
by a particular offender with a particular background. But a
commission-endorsed range for a crime is generally meant to apply
in any case involving that crime. See Rita, 551 U.S. at 350(stating that "it is fair to assume that the [g]uidelines, insofar
as practicable, reflect a rough approximation of sentences that
might achieve § 3553(a)'s objectives"). Which is why the
sentencing commission expects judges "to treat each guideline as
carving out a 'heartland,' a set of typical cases embodying the
conduct that each guideline describes," see USSG Ch. 1 Pt. A,
introductory cmt. 4(b) (emphasis added) — to view the guidelines
as a judgment about the mine-run way of committing the crime, not
as a judgment about the right range for every case. Cf. United
States v. Aguilar-Peña, 887 F.2d 347, 351 (1st Cir. 1989) (noting
that "[b]ecause the grounds for departure derived their essence
from the offense itself, not from [idiosyncratic] circumstances
- 21 -
attendant to a particular defendant's commission of a particular
crime, the grounds, virtually by definition, fell within the
heartland").
So a sentence that varies from a commission-proposed
range based solely on a community characteristic of the crime's
locale does not reflect any disagreement with the commission's
policy-based reasons for setting the range itself. It merely
reflects a decision that the case at hand is not mine-run and thus
is not the kind of case for which that baseline range was set.
Otherwise, one could describe any variant sentence as resting on
an exercise of authority under Kimbrough.
Nor do we see how a judge using Kimbrough can highlight
a guideline's nationwide focus as the sole reason for not
employing the guidelines as a starting point for applying the
§ 3553(a) factors to the specific case at hand — especially given
our long-held view "that the birth of the Sentencing Commission
was to some extent reflective of Congress's ardent desire to
dispense with inequalities based on localized sentencing
responses." See Aguilar-Peña, 887 F.2d at 352; see also 28 U.S.C.
§ 991(b)(1)(B).
The net result is that the government is mistaken in
thinking that a judge can avoid Rivera-Berríos's precedential
reach simply by invoking the authority that Kimbrough blesses to
- 22 -
reject a guideline on policy grounds. To us, the authority to
vary a sentence that each of those cases addresses is simply too
distinct for that to be so.13 And Rivera-Berríos makes clear that
judges act arbitrarily and capriciously by varying upward from the
advisory range based solely on the characteristics of the broader
community where the defendant's conduct took place.
4
Drawing on long-standing precedent, Rivera-Berríos (as
we hinted above) held that when judges "rel[y] on" a § 3553(a)
13 In a post-briefing letter, see Fed. R. App. P. 28(j), the
government writes that "to the extent Flores" believes that the
judge "could not vary based on a policy disagreement with the
[g]uidelines," United States v. Politano, 522 F.3d 69 (1st Cir.
2008) — which, the letter adds, "cit[es]" Kimbrough — holds that
he could. This is because, in the government's view, the Politano
judge made a Kimbrough variance when he remarked, "I think any
reader of the daily newspapers is aware that the illegal
trafficking of firearms at the street level is a significant
contributing factor in what, without exaggeration I think, can be
called an epidemic of handgun violence in communities within th[e]
district" of Massachusetts. The argument does not persuade us,
however. The district court there did not base the upwardly
variant 24-month sentence (which exceeded the top end of the range
by 6 months) solely on community characteristics. Actually, in
mentioning the community characteristics, the district court did
not say that they supported an upward variance in any amount.
Instead, the district court simply said that they showed the
defendant did a very serious crime, requiring a correspondingly
serious sentence. And then the district court pinpointed another
aggravating circumstance — "the likelihood of recidivism" that the
"[g]uidelines somewhat underestimate[d] or undercount[ed]" in that
defendant's case. 552 F.3d at 74. So ultimately we read Politano
as rejecting the same theory that Flores-Machicote rejected — that
a sentencer cannot consider community characteristics at all (more
about Flores-Machicote shortly).
- 23 -
consideration "already accounted for by the . . . guidelines to
impose a variant sentence," they "must indicate what makes that
factor worthy of extra weight," see 968 F.3d at 136 (quotation
marks omitted) — i.e., they "must articulate specifically the
reasons" why the "defendant's situation is different from the
ordinary situation covered by the guidelines calculation," see
United States v. García-Pérez, 9 F.4th 48, 53 (1st Cir. 2021)
(quotation marks omitted).14 The factor the Rivera-Berríos judge
relied on — that the crime involved a machine gun — was already
figured into the "guideline[s] calculus." See 968 F.3d at 136.
"And," Rivera-Berríos added, "the record" lacked "any basis for
giving that factor extra weight." Id. The judge there did
emphasize crime trends in Puerto Rico. But he did not — as the
14 By way of another after-briefing missive, the government
claims that the "different from the ordinary situation covered by
the guidelines calculation" requirement clashes with Supreme Court
precedent — including Gall, which rejected "an appellate rule that
requires 'extraordinary' circumstances to justify a sentence
outside the [g]uidelines range." See 552 U.S. at 47. We question
whether this letter relates to any previously briefed issue in
this case (the government does not direct us to "the page of the
brief," as 28(j) commands). See Hernandez Lara v. Barr, 962 F.3d
45, 52 n.10 (1st Cir. 2020) (stating that a party cannot use the
28(j) process "to introduce new arguments that [it] failed to raise
in its brief"). And even if we resolved our doubts in the
government's favor, the government articulates no theory for how
we as a panel can undo that oft-repeated requirement (repeated, by
the way, in cases that also cite Gall (for example)). See, e.g.,
Carrasquillo-Sánchez, 9 F.4th at 59. Either way, the government's
claim is not a difference-maker here.
- 24 -
caselaw requires — specifically tie this concern to "the nature of
the defendant's conduct beyond his possession of a machinegun."
See Carrasquillo-Sánchez, 9 F.4th at 61 (discussing Rivera-
Berríos); see also García-Pérez, 9 F.4th at 53-54 (ditto).
We can match up some of the key words the judge used at
Rivera-Berríos's sentencing and Flores's, almost precisely
(remember the same judge sentenced both men) — for instance (a few
alterations added; others in original):
Rivera-Berríos's Sentencing Flores's Sentencing
"A modern gun can fire more "A modern machine gun can fire
than one thousand round[s] more than a thousand rounds
a[] minute allowing a shooter per minute which allows a
to kill dozens of people shooter to kill dozens of
within a matter of seconds." people within a matter of
seconds."
"[M]achine guns largely exist "[M]achine guns largely exist
on the black market." on the black market."
"[V]iolent crimes and murders "Violent crime and murders
are occurring at all hours of are occurring at all hours of
the day in Puerto Rico, in any the day, in any place on the
place on the island, even on island, even on congested
congested public highways, in public highways, in shopping
shopping centers, public centers, public basketball
basketball courts, and at courts, and at cultural
cultural centers." events."
As for the concerns expressed in the first two boxes
(involving the lethality and illegality of machine guns
generally), the guidelines already capture them. See, e.g.,
- 25 -
Carrasquillo-Sánchez, 9 F.4th at 59; Rivera-Berríos, 968 F.3d at
136. And as for the concerns expressed in the third box (involving
the frequency of machine-gun violence in Puerto Rico), while they
"may be relevant at sentencing," the judge still had to consider
Flores's individual circumstances — i.e., he still had to make a
"case-specific nexus" between the community-based characteristics
and the circumstances of Flores's situation beyond his machine-
gun possession. See Rivera-Berríos, 968 F.3d at 136. But this
the judge failed to do.
Despite the government's claim that the judge
"conduct[ed] an individualized assessment of Flores's personal
characteristics and the details of his offense," nothing in the
judge's brief synopsis of those points — including the amount of
ammo recovered, plus the spent casing — shows that the judge relied
on them in varying so drastically from the suggested prison range.
Said otherwise, to borrow from Carrasquillo-Sánchez, "[t]here is
no sense in which the [judge], by considering" specific personal
factors, "was offering an individualized basis for the upward
variance that [she] imposed." See 9 F.4th at 60.
Citing to the presentence report, the government plays
up how agents arrested Flores after he went through a McDonald's
drive-thru with the Glock. But the judge did not mention this
fact in explaining his chosen sentence. And to borrow again from
- 26 -
Carrasquillo-Sánchez, even though the presentence report
referenced "certain facts," they could not "be used to supplement
the [judge's] explanation" because "nothing in the [judge's]
summary of the facts and weighing of the sentencing factors
indicates that [he] relied on" them for the "variant sentence."
See id. at 62; see also García-Pérez, 9 F.4th at 55 (making a
similar point in a similar situation).
While admittedly the judge did say that the sentence had
to reflect the crime's seriousness, promote respect for the law,
and provide adequate deterrence and public protection, "[t]hese
concerns" are too "generic: they apply to any defendant in any
machine gun possession case." See Rivera-Berríos, 968 F.3d at
137. In coming up with the upward variance, the judge — as we
keep saying — had to link these interests to Flores's circumstances
and behavior independent of his mere machine-gun possession. See
id. But we know the judge did not because (and here is the
clincher) he (as the government admits) said that "[t]he [c]ourt
does not purport to establish that . . . Flores'[s] crime itself
was more harmful than others similar to his" — meaning that (other
than the community characteristic) "the nature" of Flores's
"firearm" provided "the driving force behind the upward variance."
See id. at 135. The government tries to explain away the judge's
comment by arguing that he said it while making a Kimbrough-style
- 27 -
policy disagreement. But our rejection of the government's
Kimbrough theory makes this argument a nonstarter too.
The government's brief might be read as suggesting that
Rivera-Berríos conflicts with our earlier decision in Flores-
Machicote, thus requiring us to follow Flores-Machicote. If so,
the government is wrong.
Flores-Machicote rejected a defendant's categorical
claim that a sentencing judge could not consider a community-based
characteristic of the offense, namely, "the incidence and trend
lines of particular types of crime in the affected community."
Id. at 23. Such a characteristic, we explained, may "appropriately
inform[] and contextualize[] the relevant need for deterrence,"
id. — a consideration made relevant by § 3553(a)(2)(B). But
Flores-Machicote did not address how much weight a judge could
give to that kind of characteristic in making a variant sentence.
And that is probably because the defendant there did not ask us to
address that question: again, he argued categorically that a
community-based characteristic of the crime could not be
considered at all under § 3553(a) and so could not be given any
weight seemingly for any purpose, including even presumably in
setting a within-guidelines sentence.
Rivera-Berríos, however, gave us a chance to address
whether sentencers can rely exclusively on community
- 28 -
characteristics in varying upward from the guidelines. See 968
F.3d at 136 (declaring that "even though such community
characteristics may be relevant at sentencing," district judges
must still tie their sentencing decisions to "'individual factors
related to the offender and the offense'" (quoting United States
v. Rivera-González, 776 F.3d 45, 50 (1st Cir. 2015), plus relying
on Flores-Machicote as well)). And faced with that question, we
— after saying that this characteristic could be a factor —
answered with an emphatic no. See id.15
The bottom line is that Rivera-Berríos does not clash
with Flores-Machicote.16
Our concurring colleague claims that our vacating Flores's
15
sentence conflicts with decisions from "at least two of our sister
circuits." His critique is true only if our decision clashes with
Flores-Machicote (his unstated premise is Flores-Machicote's
analysis mirrors the analysis in the sibling-circuit cases). But
because we see no conflict between Flores-Machicote and this case,
we disagree with our friend's circuit-split charge.
Paraphrasing this part of our opinion as saying "that
16
community-based considerations calling for greater deterrence can
only be relied on in combination with other factors," our
concurring co-panelist then seemingly suggests he thinks our take
is explanation-free or made up. But our citing and quoting circuit
caselaw shows otherwise. We note too that Flores-Machicote itself
recognized "that a sentencing court's emphasis on factors that are
specifically tied to either the offender or the offense of
conviction — say, the perceived shortcomings of local courts or
the incidence of particular crimes in a given locale — may . . .
go too far." See 706 F.3d at 23 (adding that "[a] sentencing
judge's resort to community-based characteristics does not relieve
him or her of the obligation to ground sentencing determinations
in case-specific factors" (citing Politano, 522 F.3d at 74)). And
today's case is a case of a sentencer going too far, given Rivera-
- 29 -
IV
To continue quoting Rivera-Berríos — and as a matter of
helpful repetition as we bring this opinion to a close — when, as
here, neither the judge nor the record identifies a "special
characteristic attributable either to the offender" or the
circumstances of "the offense" that "remove[s]" the "case from the
mine-run," the "upwardly variant sentence cannot endure." See 968
F.3d at 137. Having so ruled — after spying no error with the
judge's prohibited-person finding — we need not tackle Flores's
other sentencing challenges (including, for example, his
substantive-unreasonableness claim). See, e.g., Carrasquillo-
Sánchez, 9 F.4th at 62; Rivera-Berríos, 968 F.3d at 137. And
taking our cue from Rivera-Berríos, we vacate the contested
Berríos (authored by the same judge who authored Flores-
Machicote): Just as in Rivera-Berríos, because the judge
considered Puerto Rico's high rate of gun violence "unmoored from
any individual characteristics of either the offender or the
offense of conviction," his community-based concerns "cannot serve
as building blocks for an upward variance," see 968 F.3d at 137
(citing Flores-Machicote, 706 F.3d at 21); accord Carrasquillo-
Sánchez, 9 F.4th at 61. And as our colleague acknowledges, Rivera-
Berríos and Carrasquillo-Sánchez compel the result reached by us.
- 30 -
sentence and remand for resentencing within the advisory prison
range of 24 to 30 months. See 968 F.3d at 137.
- CONCURRING OPINION FOLLOWS -
- 31 -
KAYATTA, Circuit Judge, concurring. Flores possessed a
machine gun. In that sense, he was the "mine-run" defendant
charged under 18 U.S.C. § 922(o) with possessing such a firearm.
Flores, however, possessed that machine gun in a community
rationally viewed by the sentencing judge as atypically plagued by
machine-gun carnage. In that sense, he was not the mine-run
individual charged under section 922(o).
We have previously said that "a sentencing judge may
consider community-based and geographic factors" because "the
incidence of particular crimes in the relevant community
appropriately informs and contextualizes the relevant need for
deterrence." United States v. Flores-Machicote, 706 F.3d 16, 22–
23 (1st Cir. 2013). Although we cautioned that a sentencing judge
"may not go too far" in emphasizing factors not specifically tied
to the given offender or offense, id. at 24, we nevertheless upheld
an upwardly variant sentence of 60 months (19 months over the high
end of the range recommended by the Guidelines). In so doing, we
expressly held that "it is permissible for a sentencing court to
consider the incidence and trend lines of particular types of
crimes in the affected community." Id. at 23. Accordingly, if
"violent crime is running rampant" in a particular community, a
"judge reasonably may conclude that the need for deterrence is
great -- and this may translate into a stiffer sentence." Id.
- 32 -
Here, with the district court's explanation of the
community's need for added deterrence at least as developed as
that in Flores-Machicote, we nevertheless vacate a variant
sentence of 48 months (18 months over the high end of the range
recommended by the Guidelines). In so doing, we effectively part
company with our past decision in Flores-Machicote and with
decisions of at least two of our sister circuits. See United
States v. Cavera, 550 F.3d 180, 195–96 (2d Cir. 2008) (en banc)
(holding that locality-based factors, such as the severity of local
gun control laws and its impact on the profitability of the black
market for illegal firearms, can justify an upward variance from
the Guidelines); United States v. Hatch, 909 F.3d 872, 874–75 (7th
Cir. 2018) (citing Cavera and Flores-Machicote to hold that a
sentencing judge may consider community-specific factors, such as
an increase in local gun violence and the need to deter illegal
gun trafficking, when imposing an upward variance).
How did we get to this point? The answer resides in two
intervening decisions. The first is United States v. Rivera-
Berríos, 968 F.3d 130 (1st Cir. 2020). In that case, we claimed
to follow Flores-Machicote by acknowledging that "community
characteristics may be relevant at sentencing." Id. at 136. But
then -- even though the defendant there (unlike the mine-run
defendant) possessed a machine gun in a community the sentencing
- 33 -
judge perceived as beset by violence, id. at 135 -- we concluded
that there was no "case-specific nexus" between those community-
based considerations and the individual defendant or offense. Id.at 136–37.
Next came our decision in United States v. Carrasquillo-
Sánchez. See 9 F.4th 56 (1st Cir. 2021). There, the district
court explained that Puerto Rico was "in a state of siege" due to
machine-gun possession, and it pointed to nine examples of recent
machine-gun shootings from the preceding months. Id. at 61. With
Rivera-Berríos in the driver's seat, we left Flores-Machicote in
the dust by declaring this community-based concern "unmoored" from
the defendant's individual characteristics, and even from the
offense. Id. (quoting Rivera-Berríos, 968 F.3d at 137). In short,
we deemed the possession of a machine gun in Puerto Rico, without
more, to be the mine-run machine-gun possession case, even in the
face of the district court's apparently uncontested assertion that
machine-gun possession posed a greater problem there than
elsewhere.
That leads us to today's decision, where we now for a
third time reject a district court's attempt to vary upward based
on the conditions in Puerto Rico. The majority opinion suggests
that our more recent precedent can be reconciled with Flores-
Machicote (and thus with the decisions of our sister circuits).
- 34 -
But it is difficult to see how. Flores-Machicote gave a full-
throated endorsement for the ability to enhance a sentence when
the sentencing judge concludes that "violent crime is running
rampant" in a particular community, 706 F.3d at 23, while Rivera-
Berríos and Carrasquillo-Sánchez held that a judge cannot rely on
that perceived need for greater deterrence to justify an upwardly
variant sentence. The majority tries to explain away the tension
between these precedents by reasoning that community-based
considerations calling for greater deterrence can only be relied
on in combination with other factors. The majority does not
explain how a factor can add months to a sentence when added to
other factors that themselves support an enhancement, yet support
no enhancement at all on its own. And while the majority suggests
that it is simply holding that the variance went "too far," its
explanation of its holding makes clear that any upward variance
based solely on community characteristics is too far.17 Maj. Op.
at 29 n.16. Simply put, any straightforward comparison of page 23
of our opinion in Flores-Machicote with the holding in this case
17 Hence, the majority does not attempt to explain why the
19-month variance over the Guideline range in Flores-Machicote was
not too far, yet the 18-month variance over the Guideline range in
this case is too far. Nor does it attempt to explain what variance
would not be too far.
- 35 -
makes clear that our circuit has flip-flopped along the way, and
we have likely landed wrong side up.
The end result seems hard to square with real-world
scenarios. Consider, for instance, a defendant who unlawfully
possesses a machine gun in a densely populated neighborhood in
Boston compared with a defendant who possesses a machine gun in a
rural town in Western Massachusetts. Presumably, a sentencing
judge could vary upward in the first context because the possession
of a machine gun in a crowded city presents dangers that would not
otherwise be accounted for in the mine-run circumstance. But if
that is true, it is not clear why a defendant's unlawful possession
of a machine gun in a community the sentencing judge views as
atypically impacted by the specific offense would not also present
a case that is distinct from the mine-run case. Cf. United States
v. Politano, 522 F.3d 69, 72–74 (1st Cir. 2008) (approving a
district court's variance based on its conclusion that "community-
specific characteristics in the District of Massachusetts,"
including a perceived "epidemic of handgun violence," made "the
impact of [firearms trafficking] . . . more serious than that
reflected by the Sentencing Commission").
The majority is even unclear about how it views the
community-based considerations present in this case. At one point,
the majority explains that a variant sentence "based solely on a
- 36 -
community characteristic of the crime's locale . . . merely
reflects a decision that the case at hand is not mine-run." Maj.
Op. at 22. And yet, later on, the majority admonishes the
sentencing judge for not "link[ing] [the community-based]
interests to Flores's circumstances and behavior" in a way that
takes this out of the mine-run of gun-possession cases. Maj. Op.
at 27. In essence, the majority seems to conclude that the
district court's community-based rationale was too case-specific
to be justified as a policy disagreement with the Guidelines under
Kimbrough v. United States, 552 U.S. 85 (2007), yet too unmoored
from the specific case to justify a variance in accord with
section 3553(a).
As a result, my colleagues have effectively deprived
district judges of the ability to align sentences with the
perceived level of crimes in their communities, and hence with the
requisite need for deterrence. And because the Sentencing
Commission pays no heed to such local variations, that leaves no
one able to raise (or lower) sentences based on the needs of those
who are most directly affected by the crimes at issue.
To me, this all points strongly toward the conclusion
that Flores-Machicote was correct in holding that an increased
need for deterrence in a given community should be able to justify
a variant sentence, at least to some extent. And, as I read
- 37 -
section 3553(a), Congress has agreed by expressly calling for
sentencing judges to consider (in addition to the Guideline range)
"the need . . . to afford adequate deterrence to criminal
conduct." 18 U.S.C. § 3553(a)(2)(B). Given this direction, it is
difficult to understand how our court can hold that a district
court in Puerto Rico cannot conclude that a Guideline sentence
adequate to deter machine-gun possession in Portland, Maine may
not be adequate to do so in San Juan. And one can fairly ask, if
there were a sharp increase of high-profile machine gun shootings
in Boston, would we really say that district judges could not under
section 3553(a) decide that an increased need for deterrence
called for stiffer sentences in machine-gun possession cases in
Boston?
That said, I must agree that our most recent precedent
under Rivera-Berríos and Carrasquillo-Sánchez precludes us from
affirming what would otherwise seem to be a properly justified
upward variance aimed at deterring an offense more serious than
the mine-run version precisely because of the increased threats
faced by the community in which it occurred. Whether that most
recent precedent need itself be revisited is a question to be
addressed after this panel's opinion is issued.
- 38 -