FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO Hon. Francisco A. Besosa, U.S. District Judge
L. Sanchez-Mercado and ESM Law Office on brief for appellant.
Kathryn Debrason, Assistant United States Attorney, Rosa
Emilia Rodríguez-Vélez, United States Attorney,
and Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, on brief for appellee.
Howard, Chief Judge, Torruella and Thompson, Circuit Judges.
THOMPSON, CIRCUIT JUDGE.
appeal bores out of a district court's imposition of a
twenty-four month sentence (the statutory maximum) on Luis
Alejandro-Rosado for violating his terms of supervised
release. At the revocation hearing, Alejandro-Rosado admitted
to the multiple violations the government accused him of
committing and asked that the court sentence him within the
Guideline Sentencing Range (of four to ten months). After
hearing lengthy arguments pertaining to both
Alejandro-Rosado's violations as well as the purported
mitigating factors presented, the court nonetheless decided
the proper sentence was the statutory maximum.
Alejandro-Rosado now appeals this sentence as unreasonable.
Having reviewed the record, case law, and arguments, we find
that the district court exercised reasonable sentencing
procedure and arrived at a substantively reasonable result.
We therefore affirm.
Getting Our Factual Bearings
was originally convicted of receiving a firearm as a person
under indictment in violation of 18 U.S.C. §§
922(n), 924(a)(1)(D), a class D felony. He was sentenced to
thirty-six months' imprisonment and three years of
supervised release. His incarceration ended on January 15,
2015, and he immediately began serving his term of supervised
release. On June 22, 2016, and July 7, 2016, the United
States Probation Office filed motions notifying the district
court of nine separate violations of Alejandro-Rosado's
supervised release terms that had occurred between July 2015
and June 2016.
violations were as follows. In July 2015, Alejandro-Rosado
failed his first drug test. He again failed drug tests on
August 14, 2015, August 21, 2015, and November 30, 2015. On
May 5, 2016, Alejandro-Rosado was observed handling a firearm
and changing the magazine. That same day he was witnessed
selling cocaine. On May 18, 2016, Alejandro-Rosado was
arrested for being in possession of synthetic marijuana and
prescription pain pills (and provided an admission to being
the owner of the contraband). Moreover, canines twice alerted
officers to weapons in his apartment. A June 28, 2016, search
of his apartment by a probation officer found more drugs and
a notebook that contained the names of various inmates, their
register numbers, and numerical quantities of
money. Next to one entry read: "transaction
as soon as possible so that he not be beheaded."
Alejandro-Rosado does not dispute committing the violations.
September 14, 2016, the district court conducted a revocation
hearing to determine Alejandro-Rosado's sentence. The
government asked that the defendant be sentenced to the
statutory maximum of twenty-four months. Though
Alejandro-Rosado admitted to committing violations, he asked
that the court, in consideration of mitigating factors,
impose a sentence of four to ten months pursuant to the
sentencing guidelines. Among the factors Alejandro-Rosado raised
were his poor physical health, psychological well-being,
misunderstanding of release terms, and full acceptance of
responsibility for his violations. Though the district court
acknowledged that the guidelines recommended a four to ten
month sentence, it reasoned that the twenty-four month
sentence was nonetheless sufficient but not greater than
necessary to comply with 18 U.S.C. § 3553(a). In
deviating from the guidelines, the court explained that a
higher sentence was necessary in order to "(1) reflect
the seriousness of the violations, (2) promote respect for
law, (3) provide just punishment for the offenses, (4) afford
adequate deterrence, and (5) protect the public from future
crimes" by Alejandro-Rosado. Alejandro-Rosado concedes
that the district court had discretion to impose this
sentence, but now appeals it as unreasonable.
first challenges the procedural reasonableness of his
sentence. While we generally review a sentence following
revocation of supervised release for abuse of discretion,
see United States v. Butler-Acevedo, 656 F.3d 97, 99
(1st Cir. 2011), Alejandro-Rosado did not object to the
procedural reasonableness of his sentence below and it is
therefore unpreserved. We review an unpreserved procedural
challenge for plain error, a steep climb for defendants on
appeal. See United States v. Soto-Soto, 855 F.3d
445, 448 (1st Cir. 2017); United States v.
Rodríguez-Meléndez, 828 F.3d 35, 38 (1st
Cir. 2016). To prevail under plain error review, a defendant
must show "(1) that an error occurred (2) which was
clear and obvious and which not only (3) affected his or her
substantial rights, but also (4) seriously impaired the
fairness, integrity, or public reputation of judicial
828 F.3d at 38 (quoting United States v. Roy, 506
F.3d 28, 30 (1st Cir. 2007)).
Gall v. United States, 552 U.S. 38, 49-50 (2007),
the Supreme Court outlined the procedural framework that
district courts should use in determining a sentence. In
particular, it explained that (1) the court must calculate
the applicable guidelines sentencing range, (2) it must allow
both sides to argue for the sentence they feel is
appropriate, and (3) it must then consider the relevant
§ 3553(a) factors before imposing its ultimate sentence.
Id. Here, Alejandro-Rosado contends that the
district court procedurally erred when (1) it failed to
consider certain mitigating factors and (2) it varied beyond
the recommended range. The government disagrees, arguing that