United States Court of Appeals For the First Circuit
UNITED STATES OF AMERICA,
JOSÉ COLÓN DE JESÚS,
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Lynch, Selya and Barron, Circuit Judges.
Arza Feldman and Feldman and Feldman on brief for appellant. Leslie R. Caldwell, Assistant Attorney General, Sung-Hee Suh, Deputy Assistant Attorney General, Richard A. Friedman, Appellate Section, Criminal Division, United States Department of Justice, Rosa E. Rodríguez-Vélez, United States Attorney, and Nelson Pérez Sosa, Assistant United States Attorney, on brief for appellee.
July 29, 2016
SELYA, Circuit Judge. Defendant-appellant José Colón de
Jesús challenges both the substantive reasonableness of his
upwardly variant sentence and a financial disclosure condition
incident to his supervised release term.1 After careful
consideration, we summarily affirm.
Because this appeal follows a guilty plea, we draw the
facts from the non-binding plea agreement (the Agreement), the
undisputed portions of the presentence investigation report (the
PSI Report), and the transcript of the disposition hearing. See
United States v. Bermúdez-Meléndez, ___ F.3d ___, ___ (1st Cir.
2016) [No. 14-2209, slip op. at 1]. On July 28, 2013, Puerto Rico
police officers observed an individual, later identified as the
appellant, riding a horse toward them at high speed, with a firearm
in his waistband. After he fell from his steed, the officers took
him into custody and confiscated the firearm, which proved to be
loaded with 16 rounds of ammunition. Upon a search incident to
his arrest, the officers discovered two additional 15-round
magazines (fully loaded). Moreover, the appellant acknowledged
that the seized firearm had been modified to fire automatically as
1 The spelling of the appellant's name is inconsistent throughout relevant documents. For simplicity's sake, we have settled on a single spelling.
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In due season, a federal grand jury returned a two-count
indictment. Count 1 charged the appellant with knowingly
possessing a firearm and ammunition after having been convicted of
a felony. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). Count 2 charged
the appellant with knowingly possessing a machinegun. See id.
§ 922(o)(1). After initially maintaining his innocence, the
appellant entered into the Agreement and tendered a guilty plea to
Pertinently, the Agreement memorialized the parties'
joint recommendation that the appellant should be sentenced near
the middle of the applicable guideline sentencing range (GSR).
The district court subsequently accepted the appellant's plea to
At sentencing, the court — without objection — adopted
the calculations adumbrated in the PSI Report, which resulted in
a GSR of 30-37 months (based on a total offense level of 17 and a
criminal history category of III). Despite the parties' joint
recommendation for a mid-range guideline sentence, the court
varied upward and imposed a 60-month term of immurement, to be
followed by a three-year term of supervised release. This timely
2 Pursuant to the Agreement, the district court later dismissed count 2.
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In this venue, the appellant advances two assignments of
error. First, he asserts that his 60-month incarcerative sentence,
though only one-half the statutory maximum sentence, see id.
§ 924(a)(2), is substantively unreasonable. Second, he asserts
that the district court erred in attaching a financial disclosure
condition to his supervised release term. We discuss each
assignment of error in turn.
A. The Length of the Sentence.
The appellant challenges his sentence as substantively
unreasonable, suggesting that the mid-range guideline sentence
limned in the Agreement would have been sufficient. Because the
appellant voiced this objection at the disposition hearing, our
review is for abuse of discretion. See Gall v. United States, 552
U.S. 38 , 51 (2007).
When mulling a challenge to the substantive
reasonableness of a sentence, considerable deference is due to the
district court's judgment. See id.; United States v. Clogston,
662 F.3d 588 , 593 (1st Cir. 2011). This respectful approach
recognizes that even though "[a] sentencing court is under a
mandate to consider a myriad of relevant factors, . . . the
weighting of those factors is largely within the court's informed
discretion." Clogston, 662 F.3d at 593. It follows that even
where — as in this case — the district court imposes a variant
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sentence, a reviewing court must afford "due deference to the
district court's decision that the § 3553(a) factors, on a whole,
justify the extent of the variance." Gall, 552 U.S. at 51.
Reasonableness is itself "a protean concept." United
States v. Martin, 520 F.3d 87 , 92 (1st Cir. 2008). In the last
analysis, a sentence will withstand a challenge to its substantive
reasonableness as long as it rests on "a plausible sentencing
rationale" and reflects "a defensible result." Id. at 96.
Applying this yardstick, we will vacate the sentence "if — and
only if — the sentencing court's ultimate determination falls
outside the expansive boundaries of [the] universe" of reasonable
sentences. Id. at 92.
Here, the district court articulated a plausible
sentencing rationale. It took pains to note its consideration of
the factors made relevant by 18 U.S.C. § 3553(a) and commented
upon specific factors that applied to the appellant's situation.
The court also considered the appellant's prior criminal history
(which was significant and included convictions for similar
offenses). Describing that history, the court concluded that the
appellant "knew clearly the consequences [of weapons violations]
and still . . . didn't learn the lesson."
After conducting this assessment, the court explicitly
determined that the guideline range did not "fully reflect the
seriousness of the offense, the risk and harm to society, nor what
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has happened here." Stressing the need for deterrence, the court
concluded that an appropriate sentence demanded an upward
The resultant sentence surpassed the top of the GSR by
23 months. Such a sentence is admittedly stern. But a stern
sentence may still fall within the universe of reasonable
sentences, though we have recognized that the greater the extent
of a variance, "the more compelling the sentencing court's
justification must be." United States v. Del Valle-Rodríguez, 761
F.3d 171 , 177 (1st Cir. 2014).
Here, the district court adequately justified the
sentence. As the court noted, there were aggravating factors,
including the appellant's recidivism, the especially menacing
nature of the firearm in question (which to the appellant's
knowledge had been deliberately modified to function as a
machinegun), and the extra magazines that the appellant carried.
Equally as important, the court tied the upward variance to
specific section 3553(a) factors. See United States v. Díaz-
Arroyo, 797 F.3d 125 , 130 (1st Cir. 2015); United States v.
Scherrer, 444 F.3d 91 , 92-93 (1st Cir. 2006) (en banc). On
balance, we think that the court's sentencing rationale is
plausible, that the end result (a 60-month sentence) is defensible,
and that, therefore, the sentence is within the broad compass of
the court's discretion.
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In an effort to blunt the force of this reasoning, the
appellant argues that the district court abused its discretion in
lending societal factors, such as the crime rate in Puerto Rico,
undue weight in the sentencing calculus. This argument cannot
carry the day: "[w]e have squarely held that a district court may
consider community-based and geographic factors in formulating its
sentence." Bermúdez-Meléndez, ___ F.3d at ___ [No. 14-2209, slip
op. at 4]. Because community-based considerations, such as the
local crime rate, "are inextricably intertwined with deterrence,"
it was not an abuse of discretion for the district court to use
the Puerto Rican crime rate as one of several integers in the
sentencing calculus. United States v. Flores-Machicote, 706 F.3d
16 , 23 (1st Cir. 2013).
So, too, the appellant's emphasis on the parties' joint
sentencing recommendation (which the district court spurned) is
misplaced. When faced with a challenge to the substantive
reasonableness of a sentence, a reviewing court must focus its
inquiry on the sentence actually imposed, not on the relative merit
of that sentence as contrasted with a different sentence mutually
agreed to by the parties. Cf. Bermúdez-Meléndez, ___ F.3d at ___
[No. 14-2209, slip op. at 3] ("Although a sentencing court
typically has a duty to explain why it selected a particular
sentence, it has 'no corollary duty to explain why it eschewed
other suggested sentences.'" (quoting United States v. Vega-
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Salgado, 769 F.3d 100 , 104 (1st Cir. 2014))). Consequently, we
have no need to ponder the desirability vel non of the sentence
recommended by the parties but eschewed by the sentencing court.3
To sum up, a sentencing court has wide discretion in how
it chooses to weigh the section 3553(a) factors in any given case.
See United States v. Zapata-Vázquez, 778 F.3d 21 , 24 (1st Cir.
2015). "[T]here is no stringent mathematical formula that cabins
the exercise of the sentencing court's discretion." Martin, 520
F.3d at 91-92. Those principles control here: though the upward
variance imposed by the district court is significant, it does
not, on this record, warrant a finding that the sentence is
substantively unreasonable. See, e.g., United States v. Rivera-
González, 776 F.3d 45 , 52 (1st Cir. 2015); Flores-Machicote, 706
F.3d at 25.
B. Supervised Release.
Next, the appellant challenges a financial disclosure
condition that the district court imposed as a special condition
ancillary to his supervised release term. Since he did not
contemporaneously object to the imposition of this condition, our
review is for plain error. See United States v. Garrasteguy, 559
F.3d 34 , 40 (1st Cir. 2009). Under this rigorous standard, an
3 In all events, the district court — although it had no duty to do so — provided a reasoned explanation as to why the sentence recommended by the parties did not adequately respond to the nature and circumstances of the offense of conviction.
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appellant must demonstrate "(1) that an error occurred (2) which
was clear or obvious and which not only (3) affected the
defendant's substantial rights, but also (4) seriously impaired
the fairness, integrity, or public reputation of judicial
proceedings." United States v. Duarte, 246 F.3d 56 , 60 (1st Cir.
The challenged condition obligates the appellant, during
his supervised release term, to "provide the Probation Officer
access to any financial information upon request." This financial
disclosure condition is not a standard condition of supervised
release. See 18 U.S.C. §§ 3583(d), 3563(b). Yet, "[a] sentencing
court is authorized to impose any condition of supervised release
that is reasonably related to one or more of the permissible goals
of sentencing." United States v. Mercado, 777 F.3d 532 , 537 (1st
Cir. 2015). That compendium of goals includes "deterrence,
rehabilitation, and protection of the public." Id. By the same
token, a condition of supervised release may be related to the
offender's educational or vocational progress. See United States
v. Prochner, 417 F.3d 54 , 63 (1st Cir. 2005); United States v.
York, 357 F.3d 14 , 20 (1st Cir. 2004). But there are limits: a
special condition of supervised release must be reasonably related
to the factors enumerated in 18 U.S.C. § 3553(a) and must not
deprive the offender of a greater degree of liberty than is
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reasonably required. See 18 U.S.C. § 3583(d); see also
Garrasteguy, 559 F.3d at 41.
We find no plain error in the district court's imposition
of the financial disclosure condition attached to the appellant's
supervised release term.4 While the district court did not
articulate its rationale for imposing the special condition — most
likely a consequence of the lack of any contemporaneous objection
— an unexplained condition of supervised release may be upheld as
long as the basis for the condition can be inferred from the
record. See Garrasteguy, 559 F.3d at 42.
Here, the court's reasoning can be gleaned from the
materials before the sentencing court and the context of the
proceedings. The supervised release order specifically required
the appellant to "support his . . . dependents" and "work regularly
at a lawful occupation." The financial disclosure condition
complements these conditions: it allows the probation officer to
monitor the money the appellant is earning and spending, which
aids the probation officer in keeping tabs on the appellant's
rehabilitation (including his compliance with his support and
employment obligations). So viewed, the condition is reasonably
4 We note that the appellant has not explained how — if at all — compliance with the financial disclosure condition would be unduly burdensome. Should any complications arise in practice, the appellant can at that time seek relief in the district court. See 18 U.S.C. § 3583(e)(2); see also Mercado, 777 F.3d at 539.
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related to the legitimate objectives of supervised release and,
thus, the legitimate objectives of sentencing. See United States
v. Smith, 436 F.3d 307 , 311-12 (1st Cir. 2006); United States v.
Mansur-Ramos, 348 F.3d 29 , 33 (1st Cir. 2003).
The appellant demurs. His rejoinder begins with the
unassailable premise that his financial information is irrelevant
to the offense of conviction itself. He then restates the obvious:
he was neither fined nor ordered to pay restitution. Finally, he
submits that the condition had no relevance to him because the PSI
Report indicated that he had no assets. These circumstances, he
says, coalesce to render the financial disclosure condition
unreasonable. We think not.
A special condition of supervised release may be imposed
even if it is unrelated, or only tangentially related, to the
offense of conviction. See York, 357 F.3d at 20; Mansur-Ramos,
348 F.3d at 33. Nor is there any precedent for the proposition
that a financial disclosure condition can only be imposed in a
case in which the sentence includes a financial component (such as
a fine or an order for restitution). Cf. United States v.
Meléndez-Santana, 353 F.3d 93 , 107 (1st Cir. 2003) (upholding
financial disclosure condition notwithstanding absence of fine or
restitution order). We see no justification for any such ironclad
rule, and we therefore hold that a financial disclosure condition
sometimes may be attached to a supervised release term even when
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the offender's sentence does not itself include a financial
component (such as a fine or an order for restitution). This is
such a case.
We add, moreover, that the fact that the appellant may
have been impecunious at the time of sentencing does not alter the
equation. After all, the standard conditions of his supervised
release (set forth above) require him, once he starts serving his
supervised release term, to support his dependents and work
regularly at gainful employment. Presumably, then, he will have
some earnings at that time.
That ends this aspect of the matter. Because the
appellant has not shown that the financial disclosure condition is
unrelated to permissible sentencing goals, he has failed to show
that the district court plainly erred in attaching the condition
to his supervised release term. See Mansur-Ramos, 348 F.3d at 33.
We need go no further. For the reasons elucidated above,
the judgment of the district court is summarily
Affirmed. See 1st Cir. R. 27.0(c)
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