FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. José Antonio Fusté, U.S.
José L. Nieto-Mingo and Nieto Law Offices on brief for
Emilia Rodríguez-Vélez, United States Attorney,
Nelson Pérez-Sosa, Assistant United States Attorney,
Chief, Appellate Division, and Tiffany V. Monrose,
Assistant United States Attorney, on brief for appellee.
Thompson, Selya and Barron, Circuit Judges.
sentencing appeal, defendant-appellant Edgardo L.
Bermudez-Melendez mounts a multi-faceted challenge to his
upwardly variant sentence for a firearms offense. After
careful consideration, we affirm.
as this appeal trails in the wake of a guilty plea, we draw
the facts from the non-binding plea agreement (the
Agreement), the change-of-plea colloquy, the undisputed
portions of the presentence investigation report (PSI
Report), and the transcript of the disposition hearing.
See United States v.
Almonte-Nuñez, 771 F.3d 84, 86 (1st Cir.
2014). On November 27, 2013, Puerto Rico police officers
executed a search warrant at the appellant's residence in
Guaynabo. Upon their arrival, the appellant fled into a
wooded area near the house, jumped off a small cliff, and
broke both legs. A subsequent inspection of the fallen man
and his possessions revealed quantities of powdered cocaine,
crack cocaine, and marijuana, an AK-47 assault rifle, and a
collection of magazines and ammunition. More magazines and
ammunition, along with a Glock pistol, were found in the
appellant's living room.
season, a federal grand jury returned a four-count
indictment. Counts 1 through 3 charged the appellant with a
litany of drug-trafficking crimes, while count 4 - the only
count in issue here - charged him with possession of a
firearm in furtherance of a drug-trafficking crime.
See 18 U.S.C. § 924(c)(1)(A). After initially
maintaining his innocence, the appellant relented and entered
into the Agreement, in which he agreed to plead guilty to
count 4 in exchange for the dismissal of the other charges.
Among other things, the Agreement memorialized a joint
sentencing recommendation of 72 months' immurement.
change-of-plea hearing, the district court accepted the
appellant's guilty plea to count 4 and ordered the
preparation of the PSI Report. In the completed Report, the
probation office noted that the statute of conviction
required a minimum 60-month term of imprisonment.
See 18 U.S.C. § 924(c)(1); USSG §2K2.4(b).
It further noted that it had identified no factors demanding
an upward variance (but it did not foreclose the possibility
of such a variance).
sentencing, the parties urged the district court to impose
the agreed 72-month sentence. The court demurred, concluding
that a stiffer sentence was in order. It then meted out a
90-month incarcerative term. This timely appeal ensued.
pause at the threshold to brush aside the waiver-of-appeal
clause contained in the Agreement. That clause conditioned
the waiver on the imposition of a sentence in
"accordance with the terms and conditions set forth in
the Sentence Recommendation provisions of [the
Agreement]." The sentence levied by the district court
was not within the compass of the Sentence Recommendation
provisions. It follows that the waiver-of-appeal clause is a
dead letter and does not pretermit this appeal. See,
e.g., United States v.
Vargas-García, 794 F.3d 162, 165 n.2 (1st
brings us to the appellant's asseverational array. It is
familiar lore that we review challenges to the reasonableness
of a sentence by means of a two-step pavane. See
Gallv.United States, 552 U.S. 38, 51
(2007); United Statesv.Martin,
520 F.3d 87, 92 (1st Cir. 2008). We begin by examining
assignments of procedural error, which include "failing
to calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing to
consider the § 3553(a) factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately
explain the chosen sentence - including an explanation for
any deviation from the Guidelines range." Gall,
552 U.S. at 51. Once this hurdle is cleared, we then appraise