United States Court of Appeals
For the First Circuit
No. 23-1815
UNITED STATES,
Appellee,
v.
EDDIE COLÓN-VÁZQUEZ,
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,
Gelpí, and Hamilton,* Circuit Judges.
Mauricio Hernandez Arroyo, with whom Law Offices of Mauricio
Hernandez Arroyo was on brief, for appellant.
Gregory Bennett Conner, with whom W. Stephen Muldrow, United
States Attorney for the District of Puerto Rico, Mariana E.
Bauzá-Almonte, Assistant United States Attorney, and Daphne M.
Cordero-Guilloty, Special Assistant United States Attorney, were
on brief, for appellee.
June 26, 2026
* Of the Seventh Circuit, sitting by designation.
GELPÍ, Circuit Judge. Defendant-Appellant Eddie
Colón-Vázquez ("Colón") pled guilty to one count of possession of
a machinegun, in violation of 18 U.S.C. § 922(o). At sentencing,
he advocated for an eighteen-month sentence, and the government
recommended a twenty-four-month sentence. The district court,
however, sentenced Colón to forty-eight months of imprisonment, an
eleven-month upward variance from the top of his Sentencing
Guidelines range of thirty to thirty-seven months. Colón now
appeals, claiming his sentence is procedurally and substantively
unreasonable. He argues that the district court failed to
adequately explain its sentence, and that the factors it relied on
cannot support an upward variance. We disagree. Given the
district court's thorough explanation of the several permissible
factors it considered in determining Colón's sentence, we affirm.
I. BACKGROUND1
A. The Offense and Plea
Early in the morning on February 28, 2023, officers from
the Puerto Rican police department responded to a report of a man
sleeping in a stolen vehicle. When they arrived, Colón was sitting
1 "'Where, as here, a sentencing appeal follows a guilty plea,
we glean the relevant facts from the change-of-plea colloquy, the
unchallenged portions of the presentence investigation report'
("PSR"), and the transcript of the sentencing hearing." United
States v. Morales-Vélez, 100 F.4th 334, 339 n.1 (1st Cir. 2024)
(quoting United States v. Melendez-Rosado, 57 F.4th 32, 36 (1st
Cir. 2023)).
- 2 -in the driver seat of the vehicle with the front door open,
speaking to a man who was crouching on the ground next to him.
The second man ran away, but the officers detained Colón and
searched the vehicle.2
The search turned up two firearms that had been modified
to function as machineguns: a Glock pistol, model 22, and a Smith
& Wesson rifle, model MP15. The pistol was loaded with a
twenty-two-round magazine, with sixteen rounds in the magazine and
one in the chamber. The officers also found a third firearm, a
black Polymer 80 pistol, which was loaded with a twenty-two-round
magazine with seventeen rounds in it. Finally, they found
additional, loose ammunition and high-capacity magazines,3 a black
hoodie, two ski masks, a black fanny pack, and gloves in the
vehicle.
A grand jury charged Colón with one count of possession
of a machinegun, in violation of 18 U.S.C. § 922(o), and on
June 16, 2023, he entered a guilty plea pursuant to an agreement.
The parties calculated a total offense level of fifteen pursuant
2 Note, the validity of the search is not at issue on appeal.
3To be specific: two Glock magazines, with twenty-two rounds
and thirteen rounds of ammunition capacity, respectively; one
rifle magazine with fifty rounds of ammunition capacity; two rifle
magazines with thirty rounds of ammunition capacity each;
forty-six rounds of .40 caliber ammunition; and 112 rounds of .223
caliber ammunition.
- 3 -to the United States Sentencing Guidelines Manual ("U.S.S.G.").4
They agreed that Colón could recommend a sentence of eighteen
months, while the government could recommend a sentence of no more
than twenty-four months. Colón waived his right to appeal only if
the district court imposed a sentence of twenty-four months or
less.5
B. The Presentence Report
Notwithstanding the (non-binding) plea agreement, when
the United States Probation Office for the District of Puerto Rico
("Probation") prepared Colón's PSR, it calculated his total
offense level as nineteen, not fifteen.6 The difference arose, in
part, from the base offense level applied pursuant to U.S.S.G.
4 The parties applied a base offense level of eighteen, then
subtracted three levels for acceptance of responsibility.
Although the plea agreement cited U.S.S.G. § 2K2.1(a)(4)(A) for
the base offense level, this citation appears to be an error. A
base offense level of eighteen applies under § 2K2.1(a)(5), not
(a)(4); sub-section (a)(5) applies "if the offense involved a
firearm described in 26 U.S.C. § 5845(a)." As discussed below,
both the Glock pistol and the Smith & Wesson rifle fell under
§ 5845(a)'s penumbra.
5 Because the district court sentenced Colón to forty-eight
months, the appellate waiver does not apply. Cf. United States v.
Staley, 43 F.4th 9, 14 (1st Cir. 2022) (noting a waiver of
appellate rights is "presumptively enforceable" if it "was made
knowingly and voluntarily" (quoting United States v. Nguyen, 618
F.3d 72, 74 (1st Cir. 2010))).
6 The 2021 Guidelines Manual was used to prepare Colón's PSR.
All Guidelines citations are to that edition. See U.S.S.G.
§ 1B1.11(a) ("The court shall use the Guidelines Manual in effect
on the date that the defendant is sentenced.").
- 4 -§ 2K2.1. That Guidelines provision governs unlawful firearm
possession and sets a base offense level that varies depending on
factors such as the nature of the firearm(s) and the defendant's
criminal history. See U.S.S.G. § 2K2(a)(1)-(8). It further
directs that the greatest base offense level should apply.
U.S.S.G. § 2K2(a).
Pursuant to that directive, where the parties applied a
base offense level of eighteen under sub-section (a)(5), Probation
applied a base offense level of twenty under sub-section (a)(4)(B).
Guidelines § 2K2.1(a)(4)(B) applies, in relevant part, if (1) the
offense involves a firearm that is described in 26 U.S.C.
§ 5845(a), and (2) the defendant was a "prohibited person" at the
time of the offense. U.S.S.G. § 2K2.1(a)(4)(B)(i)(II), (ii)(I).
As to the first prong, 28 U.S.C. § 5845(a) includes machineguns
like the Glock pistol and the Smith & Wesson rifle, which had both
been modified to "shoot, automatically more than one shot, without
manual reloading, by a single function of the trigger." 28 U.S.C.
§ 5845(b). As to the second prong, because Colón was "a long-term
user of marijuana," he was a "prohibited person" under the
Guidelines. U.S.S.G. § 2K2.1(a)(4)(B)(ii)(I); Id. cmt. n.3.
After determining the base offense level, Probation
added two levels pursuant to U.S.S.G. § 2K2.1(b)(1) because the
offense involved three firearms -- a specific offense
characteristic not contemplated by the parties -- resulting in an
- 5 -adjusted offense level of twenty-two. After deducting three levels
for acceptance of responsibility under § 3E1.1(a) and (b), Colón's
total offense level was nineteen. Because he had no prior arrests
or convictions, his total criminal history score was zero,
resulting in criminal history category I. Based on a total offense
level of nineteen and criminal history category I, Colón's
Guidelines sentencing range was thirty to thirty-seven months'
imprisonment. Colón did not object to the PSR. (We further
address this issue in Part II.A. of the opinion.)
C. The Sentencing Hearing
At sentencing on September 15, 2023, defense counsel
opened by emphasizing that Colón is a young person with family
support and no criminal history, and that no one was "directly"
hurt by the offense conduct. Counsel also pointed to the
separation of Colón's parents as a factor which affected his
decision-making and requested a sentence of eighteen months. The
government then addressed the court. It summarized the
circumstances of his arrest and the search of the vehicle, then
explained: "[T]hese are basically the tools that are used by the
persons involved in either drug trafficking or violent incidents
to disguise themselves when they are prepared for shootouts. We
are not saying that he is charged with that here, but the evidence
seized speak[s] for itself." The government requested a sentence
of twenty-four months. Finally, Colón briefly spoke. He
- 6 -apologized to his family, "since it wasn't because [he] didn't
have good advice" and they were "the ones who are affected because
of [his] bad actions."
Next, the district court recounted the charge and plea,
summarized the Guidelines calculations and sentencing range, and
stated that it had considered the statutory sentencing factors,
the PSR, the plea agreement, Colón's sentencing memorandum, the
parties' arguments, and Colón's allocution. It also briefly
reviewed his personal characteristics, including his age,
educational background, employment status, and history of drug
use.
The court then addressed the offense conduct. It first
opined about the dangerousness of machineguns and specifically
noted: "During his interview . . . by the probation officer, Mr.
Colón said that he engaged in his conduct because he was following
a trend and living his life as if it were a movie. He was following
the acquaintances that pressured and supported this type of
behavior." Next, the district court changed gears, articulating
that this Court "requires that a sentencing [c]ourt, when imposing
a significant variance, . . . make clear which specific facts of
the case motivated its decision and why these facts led to its
decision to vary upward." To that end, the district court listed
the following facts.
- 7 -First, the court pointed to the combination of the two
modified firearms, third pistol, ammunition and high-capacity
magazines, ski masks, hoodie, gloves, and the fact that Colón was
dressed in black, all of which it took as "evidence of matters
having to do either with drug transactions or with violent crime
on this island." It suggested that if Colón's "friends had that
type of weaponry with them, they . . . would also be probably
involved in drug trafficking or violent crimes."
Second, citing to our decision in United States v.
Valle-Colón, 21 F.4th 44 (1st Cir. 2021), the district court noted
that the Guidelines do not account for the possession of an assault
rifle, and that "[c]oncerns about the seriousness of such fire
power [are] sufficient to remove this case from the heartland of
the relevant guidelines."
Third, citing to our decision in United States v.
Bruno-Campos, 978 F.3d 801 (1st Cir. 2020), the district court
highlighted the amount of assault rifle ammunition of two different
calibers as a "significant factor" and "additional reason" to
impose an upwardly variant sentence. It again noted that the
Guidelines did not account for the weapons, ammunition, magazines,
ski masks, and hoodie.
Fourth, the court emphasized the "high crime rate and
proliferation of illegal firearms in Puerto Rico" as "an
appropriate sentencing consideration" to "promote[] general and
- 8 -specific deterrence." As to this factor, the district court spent
some time trying to parse this Court's precedent. The district
court took note of the particularly high homicide rate in Puerto
Rico, as compared to the homicide rate in other First Circuit
jurisdictions. And it linked that high crime rate to the items
Colón possessed, which the court again emphasized "are items that
are used for criminal actions," since "firearms and violent crime
are coextensive" and "guns and drug dealing go together like a
hand in a glove."
Given these facts, the district court concluded that an
upwardly variant sentence was appropriate and that neither the
recommended sentences, nor a Guidelines range sentence, reflected
the seriousness of the offense, promoted respect for the law,
protected the public, or adequately addressed the need for
deterrence and punishment. It then sentenced Colón to forty-eight
months of imprisonment.
Defense counsel objected to the sentence, arguing that
Colón was "being sentenced for firearms or crimes or items for
which he was not indicted, . . . or perhaps they are being used as
enhancements, and these enhancements are not even mentioned in the
[PSR] as an option." Counsel further asserted that "we really do
not know the . . . totality of the circumstances for which these
items were in the car . . . . And [Colón] should be sentenced for
the facts of the case, not for speculations." The district court
- 9 -disagreed, stating, "I don't think that I'm speculating. All of
these things that were found were in the car in which Mr. Colón
was sitting and which had been stolen four days before." This
appeal followed.
II. DISCUSSION7
We review preserved claims of sentencing error for abuse
of discretion. United States v. Morales-Vélez, 100 F.4th 334, 341
(1st Cir. 2024). Under this "multifaceted standard," we review
factual findings for clear error, "interpretations and
applications of the Guidelines" de novo, and "judgment calls" for
abuse of discretion. United States v. Mercado-Cañizares, 133 F.4th
173, 178-79 (1st Cir. 2025) (citation modified).
"[A]ppellate review of sentencing decisions is limited
to determining whether they are 'reasonable.'" Gall v. United
States, 552 U.S. 38, 46 (2007). In determining reasonableness, we
first "consider if the sentence is procedurally reasonable."
Morales-Vélez, 100 F.4th at 341. Second, "we consider 'any claim
of substantive unreasonableness.'" Id. (quoting United States v.
Díaz-Lugo, 963 F.3d 145, 151 (1st Cir. 2020)). In "conducting
this review," we "take into account the totality of the
The district court had jurisdiction under 18 U.S.C. § 3231,
7
and we have appellate jurisdiction pursuant to 28 U.S.C. § 1291
and 18 U.S.C. § 3742.
- 10 -circumstances, including the extent of any variance from the
Guidelines range." Gall, 552 U.S. at 51.
A. Colón's Variance
Before turning to our review, we start with a point of
clarification. Colón's briefing refers to his sentence as both an
eleven-month variance and as a twenty-four-month variance that is
"double" the Guidelines sentence. He also states that his sentence
is "[eleven] months higher than the contested guideline sentencing
range." (Emphasis added.) And he asks us to remand and direct
the district court to employ a "base offense level of [nineteen],"
or, "[i]n the alternative, if [we] determine[] that the
calculations were correct," to nevertheless vacate.
Under Federal Rule of Criminal Procedure 32(f)(1), Colón
had fourteen days from receipt of the PSR to "state in writing any
objections," including objections to the Sentencing Guidelines
range. But as noted in Part I.B., he did not do so. Ordinarily,
"[a] party waives any objection to the PSR by failing" to file
written objections within fourteen days, per the District of Puerto
Rico's Local Criminal Rule 132(b)(3)(A). See also United States
v. Severino-Pacheco, 911 F.3d 14, 20 n.5 (1st Cir. 2018) ("[The
defendant's] failure to object to the PSR . . . might be
interpreted as a waiver.").
Nevertheless, "[t]here will be instances when a district
court's sentencing of a defendant within the framework of an
- 11 -incorrect Guidelines range goes unnoticed." Molina-Martinez v.
United States, 578 U.S. 189, 193-94 (2016). In that instance,
when a defendant failed "to object to the miscalculation" below,
we would review for plain error under Federal Rule of Criminal
Procedure 52(b). Id. at 194. But having carefully reviewed the
PSR's Guidelines calculations, see supra Part I.B, we discern no
error and conclude that the district court applied the correct
range: thirty to thirty-seven months.
With that conclusion in mind, "the starting point for a
court's sentencing determination is the guideline range, not the
parties' recommendations." Morales-Vélez, 100 F.4th at 342
(quoting United States v. Cortés-Medina, 819 F.3d 566, 573 (1st
Cir. 2016)). Thus, "in evaluating the reasonableness of [Colón's]
variant sentence, we compare the variance to the guideline [range],
not the sentence[s] recommended by the parties." Id. Colón's
unobjected to Guidelines range was thirty to thirty-seven months,
so we proceed with the understanding that his forty-eight-month
sentence is an eleven-month upward variance.
B. Procedural Reasonableness
Colón claims that his sentence is procedurally
unreasonable because the district court failed to adequately
explain the sentence. His main argument is that none of the
factors considered by the district court, including the dangerous
nature of machineguns and the quantity and type of ammunition,
- 12 -carried his case outside of the "heartland" of the applicable
Guidelines. We reject this claim for two reasons. First, Colón's
arguments isolate each underlying sentencing factor, but the
district court relied on a combination of facts and considerations,
not on any single factor alone. Second, our recent case law
forecloses his arguments.
When a sentencing court "decides that an
outside-Guidelines sentence is warranted" based on the statutory
sentencing factors, see 18 U.S.C. § 3553(a), it "must consider the
extent of the deviation and ensure that the justification is
sufficiently compelling to support the degree of the variance."
Gall, 552 U.S. at 50. Then, the court "must adequately explain
the chosen sentence to allow for meaningful appellate review and
to promote the perception of fair sentencing." Id.; see also
18 U.S.C. § 3553(c) ("The court, at the time of sentencing, shall
state in open court the reasons for its imposition of the
particular sentence.").
For purposes of appellate review, "sentencing courts
must say enough to show . . . they considered the parties'
arguments and had a reasoned basis for exercising their own legal
decisionmaking authority." Morales-Vélez, 100 F.4th at 341
(citation modified). When a court varies upward, its "duty of
explanation 'increases in proportion to the extent of
the . . . deviation from the guideline range: the greater the
- 13 -deviation, the greater the burden of justifying the sentence
imposed.'" Id. at 341-42 (quoting United States v.
Montero-Montero, 817 F.3d 35, 37 (1st Cir. 2016)). Failure to
adequately explain a sentence constitutes procedural error. Gall,
552 U.S. at 51.
Here, the district court pointed to the following
combination of facts and considerations when it determined Colón's
sentence: his possession of three firearms -- including two
machineguns -- with ammunition and high-capacity magazines; the
ski masks, hoodie, fanny pack, and gloves, and Colón's black
clothing; and Puerto Rico's high deterrence needs due to its
homicide rate. Because the district court relied on these combined
factors, we think this case is distinguishable from the cases Colón
cites. See United States v. Rivera-Berríos, 968 F.3d 130 (1st
Cir. 2020); United States v. García-Pérez, 9 F.4th 48 (1st Cir.
2021); United States v. Carrasquillo-Sánchez, 9 F.4th 56 (1st Cir.
2021). In each of the cited cases, we reversed and remanded where
the district court imposed an upward variance based solely or
primarily on the dangerous nature of machineguns, though this
factor was already accounted for by the applicable guideline,
without sufficient explanation. Rivera-Berríos, 968 F.3d at 137;
García-Pérez, 9 F.4th at 53; Carrasquillo-Sánchez, 9 F.4th at 57,
62. Colón's case, however, is more akin to United States v.
Polaco-Hance, 103 F.4th 95 (1st Cir. 2024), where we affirmed a
- 14 -sentence because the judge did not "give dispositive weight to
[the dangerousness of machineguns] alone but rather considered it
along with . . . other valid and individualized factors." Id. at
102; see also Morales-Vélez, 100 F.4th at 344 (distinguishing the
defendant's case from the Rivera-Berríos line because "the
district court did not rely exclusively on the nature of machine
guns to support its upward variance but also based its sentence on
the amount and type of ammunition found with the gun").
Moreover, even if the district court had not considered
a combination of factors, one of the factors it relied on suffices
to justify this variance under our case law: the quantity of
ammunition. Sentencing courts may vary upward where the Guidelines
do not account for the possession of "substantial quantities of
ammunition, and/or multiple high-capacity magazines," particularly
when the defendant has "more ammunition or magazines than would be
expected in a typical unlawful possession case." Bruno-Campos,
978 F.3d at 806 (first quote); United States v. Rosario-Merced,
109 F.4th 77, 83 (1st Cir. 2024) (second quote); see also
Polaco-Hance, 103 F.4th at 101 ("We have held repeatedly that the
amount of ammunition and the number of extended
magazines . . . can be valid bases for an upward variance for
firearms offenses.").
In United States v. Mercado-Cañizares, 133 F.4th 173
(1st Cir. 2025), the district court relied, in part, on the
- 15 -quantity of ammunition present in imposing the exact variance at
issue here -- forty-eight months, up from thirty-seven months at
the top of the Guidelines range. Id. at 178. We affirmed, holding
that seventy-four rounds of ammunition, fifty of which were loaded
in two high-capacity magazines, was "independently sufficient to
support" the variance. Id. at 181. As summarized in Part I.A.
supra, Colón possessed more ammunition than the defendant in
Mercado-Cañizares: seventeen rounds loaded into a twenty-two-round
magazine in the Glock pistol, another seventeen rounds loaded in
a twenty-two-round magazine in the Polymer 80 pistol, two
additional Glock magazines, three rifle magazines, and 158 rounds
of loose ammunition of two different calibers. The ammunition
alone is thus "independently sufficient" under our precedent to
support the upward variance.8 Id.; see also Rosario-Merced, 109
8Colón's arguments do not change our conclusion. He points
out that "there are no federal limits to how much ammunition one
can legally own," nor any "prohibition on specialty ammunition."
He then argues that the total ammunition and magazines he possessed is not "atypical or outside the ordinary for typical gun
ownership." To illustrate this point, he notes that ammunition is
typically sold in boxes of fifty rounds, and that commercial
airlines allow passengers to travel with ammunition in excess of
the amounts he possessed.
The thrust of his argument is that the ammunition he possessed
was "consistent with simple possession of a machine gun."
Rivera-Berríos, 968 F.3d at 135. At the risk of stating the
obvious, our case law referring to "simple possession" contains an
implicit assumption: that we are considering the amount of
ammunition in the context of illegal firearm possession, and not
within the context of legal gun ownership. See Rosario-Merced,
109 F.4th at 83 (discussing ammunition in a "typical unlawful
- 16 -F.4th at 84 (collecting cases in which we found no error with
respect to upward variances based, in part, on the amount of
ammunition).
Given this conclusion, we need not consider Colón's
challenges to the other facts the district court relied on, such
as the multiple firearms and the ski masks, or community-based
factors.9 Instead, we turn to his additional arguments attacking
the sufficiency of the district court's explanation.
possession case" (emphasis added)). Therefore, we think his
argument is creative, but ultimately inapposite.
Colón also highlights that the only Guidelines provision
which mentions ammunition "significantly ratchets down the offense
level when the number of rounds is less than 500." Again, this
argument is inapposite, as the referenced guideline concerns the
exportation of arms or munitions without a license. See U.S.S.G.
§ 2M5.2.
Finally, Colón correctly observes that he did not plead guilty
to "any specification of amounts of ammunition." But this
information was included in his PSR, which he did not object to.
As such, "the district court was entitled to draw upon the facts
within it." United States v. González-Rodríguez, 859 F.3d 134,
137 (1st Cir. 2017).
9 We do, however, issue a note of caution. Relying on our
decision in Valle-Colón, the district court stated that the
Guidelines do not account for Colón's possession of an assault
rifle, and that "[c]oncerns about the seriousness of such fire
power is sufficient to remove this case from the heartland of the
relevant guidelines."
Valle-Colón, however, concerned a different offense,
possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). 21 F.4th at 49. This
statute "does not specifically account for machine guns," and the
Guidelines range for these convictions is calculated under
U.S.S.G. § 2K2.4(b). Morales-Vélez, 100 F.4th at 343. But here,
Colón's Guidelines range for his 18 U.S.C. § 922(o) conviction was
calculated under U.S.S.G. § 2K2.1, and as explained in Part I.B.,
- 17 -First, as we understand it, Colón argues the district
court did not explicitly state that it was imposing a Kimbrough
variance based on a policy disagreement with the Guidelines'
treatment of machineguns. See Kimbrough v. United States, 552
U.S. 85 (2007). Accordingly, without notice that the court
intended to impose such a variance, "[i]t was impossible . . . to
raise any objections to disagreement with [the]
guidelines . . . notwithstanding . . . that the gun possession
was already included in the guidelines."
We disagree with this assessment. The district court
explicitly called out the dangerous nature of machineguns and later
stated: "Concerns about the seriousness of such fire power is
sufficient to remove this case from the heartland of the relevant
guidelines." And at the end of sentencing, the district court
heard objections from Colón's counsel. The record thus makes
pellucid that Colón had an opportunity to object to the district
court's assessment of the dangerous nature of machineguns and to
the weight the district court assigned to that factor. See United
States v. Carmona-Alomar, 109 F.4th 60, 73 (1st Cir. 2024) (noting
the base offense level covered both the modified pistol and the
Smith & Wesson rifle. See id. at 342 ("The statutory regimes
underpinning sections 2K2.4(b) and 2K2.1, and the text of the
guidelines themselves, are fundamentally different. Accordingly,
our analysis of each guideline yields a different result.").
But, despite this oversight, Colón does not argue that this
error alone requires that the sentence be vacated. See United
States v. Sineneng-Smith, 590 U.S. 371, 375 (2020).
- 18 -that though the defendant objected to the district court's reliance
on the dangerous nature of machineguns, he "fail[ed] to
explain . . . why the mere fact that the District Court gave some
weight to th[at] factor[] . . . shows that the . . . sentence was
procedurally unreasonable"). Furthermore, Colón conceded at oral
argument that this sentence is not a Kimbrough variance, and that
the district court could permissibly reach the same result through
such a variance.
Next, Colón takes issue with the district court's
explanation regarding its consideration of community-based
factors, i.e., Puerto Rico's homicide rate. He says the district
court relied on this factor "without any citation to authority"
and attacks the court's case law discussion as "rudimentary." The
government argues that Colón waived this claim because he raised
it for the first time on appeal and failed to argue plain error.
Colón counters that his objection at sentencing preserved the
claim, and we should review de novo. We conclude that regardless
of the standard of review applied, the record belies Colón's
assertions. See Polaco-Hance, 103 F.4th at 100 ("We need not
resolve this dispute, however, because we conclude that [the
defendant] cannot prevail even if we grant him the benefit of
abuse-of-discretion review.").
Under our precedent, "a sentencing judge may consider
community-based and geographic factors," as "the incidence of
- 19 -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);
see also 18 U.S.C. § 3553(a)(2)(B) (directing sentencing courts to
consider the need "to afford adequate deterrence to criminal
conduct"). Still, community-based factors must be "considered in
conjunction with case-specific factors." Carmona-Alomar, 109
F.4th at 72. Relevant here, at the time of Colón's sentencing we
had withdrawn a panel opinion in United States v. Flores-González,
34 F.4th 103 (1st Cir. 2022), in order to hear the case en banc
and consider "whether a district court, in its discretion, may
rely on the characteristics of the specific community in which the
defendant committed his offense (in this case, the alleged
prevalence of machinegun crimes in Puerto Rico) . . . to impose a
variant sentence." United States v. Flores-González, 46 F.4th 57,
58 (1st Cir. 2022) (Mem.).
Within this context, in which an en banc decision had
not yet issued, the district court explained that we have "set
forth shifting standards regarding the propriety of
community-based considerations" and spent ample time parsing our
case law. We read this discussion as an attempt to situate Colón's
sentence within the guidance we had issued to that point, and to
explain why the variance should be sustained, not as "rudimentary."
In light of the same, as well as the district court's citations to
- 20 -the Centers for Disease Control and Prevention and the Puerto Rico
Statistics Institute for the homicide rates he read into the
record, it is not clear why Colón argues that the district court
did not provide any citations or other authority. Accordingly, we
move on.
Two final issues. First, Colón notes that the "district
court cited some cases . . . but did not cite to all of the cases
in the Statement of Reasons." Absent more developed argumentation,
we are not quite sure what this challenge is, and so deem it
waived. See 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."). Second, in his reply brief Colón seems to assert
there is a sentencing disparity between him and other defendants.
But because he did not raise this issue in his opening brief, it
is also waived. See United States v. Thompson, 62 F.4th 37, 42
n.1 (1st Cir. 2023).
In sum, we conclude that the district court "committed
no significant procedural error." Gall, 552 U.S. at 53 ("[The
judge] correctly calculated the applicable Guidelines range,
allowed both parties to present arguments as to what they believed
the appropriate sentence should be, considered all of the § 3553(a)
factors, and thoroughly documented his reasoning."). We thus turn
to Colón's substantive challenge.
- 21 -C. Substantive Reasonableness10
Colón argues that his sentence is substantively
unreasonable because he is a "violence free offender" who committed
a "violence and victim free crime with no facts of note beyond the
type of firearm." As such, he asserts that a sentence of
twenty-four months adequately accounts for the nature of his
offense, taking into consideration his personal characteristics.
And he further claims the district court did not consider his
personal characteristics, including, among other things, that he
has no criminal history, has never been arrested, was not charged
with stealing the vehicle, and did not discharge the firearms.
Sentencing courts "must weigh competing factors and
impose a sentence that is 'sufficient, but not greater than
necessary,' to serve multiple, often-conflicting goals of
sentencing." Rosario-Merced, 109 F.4th at 85 (quoting 18 U.S.C.
§ 3553(a)). This process is "unavoidabl[y] . . . discretionary,"
and thus, "[t]here is no one reasonable sentence in any given case
but, rather, a universe of reasonable sentencing outcomes." Id.
(first quote); United States v. Clogston, 662 F.3d 588, 592 (1st
Cir. 2011) (second quote). A substantively reasonable sentence
requires (1) "a plausible sentencing rationale" and (2) "a
10Colón's objection below preserved his substantive
reasonableness challenge for appeal, so we review for abuse of
discretion. Morales-Vélez, 100 F.4th at 341.
- 22 -defensible result." Morales-Vélez, 100 F.4th at 346 (quoting
United States v. Rodríguez-Cruz, 997 F.3d 362, 366 (1st Cir.
2021)). We think both are present here.
True, at sentencing the district court did not wax
eloquent with respect to Colón's personal characteristics. But it
does not follow that the judge did not consider those
characteristics. See Severino-Pacheco, 911 F.3d at 22 ("Even if
the emphasis on his personal circumstances was not as apparent as
[Colón] would have preferred, brevity is not to be confused with
inattention." (Citation modified.)). The district court
"explicitly" acknowledged Colón's personal characteristics. Id.
That acknowledgment merits some weight in our review. And Colón
received credit for his lack of criminal history in the Guidelines
calculations, which are "the starting point and the initial
benchmark" for sentencing courts. Gall, 552 U.S. at 49; accord
Peugh v. United States, 569 U.S. 530, 542 (2013) ("Even if the
sentencing judge sees a reason to vary from the Guidelines, if the
judge uses the sentencing range as the beginning point to explain
the decision to deviate from it, then the Guidelines are in a real
sense the basis for the sentence." (Citation modified.)).
In short, Colón's sentence "falls within [the] broad
universe" of substantively reasonable sentences. Morales-Vélez,
100 F.4th at 345 (quoting United States v. Rivera-Morales, 961
F.3d 1, 21 (1st Cir. 2020)).
- 23 -III. CONCLUSION
Because we discern no procedural or substantive error,
we affirm Colón's forty-eight-month sentence.
- 24 -