FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO Hon. Carmen Consuelo Cerezo, U.S. District Judge
G. Lehman on brief, for appellant.
M. Meconiates, Assistant United States Attorney, Rosa Emilia
Rodríguez-Vélez, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States
Attorney, on brief, for appellee.
Howard, Chief Judge, Lynch and Kayatta, Circuit Judges.
HOWARD, CHIEF JUDGE.
appeal, Heriberto Ortíz-Mercado challenges his
sentence following his guilty plea to one count of possession
of a firearm by a convicted felon in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). The district court
sentenced him to seventy-one months of incarceration plus
three years of supervised release. We affirm the sentence for
the reasons that follow.
night of June 26, 2015, Puerto Rico Police Department
officers observed Ortíz crossing the street while
carrying a firearm. After exiting their unmarked vehicle, the
officers approached Ortíz and identified themselves as
police officers. Ortíz started running and threw the
firearm on the ground, but in the process he fell to the
ground and the officers arrested him. The officers recovered
a Glock model 26 pistol, fully loaded with a drum magazine
containing forty-nine rounds of 9mm ammunition plus a round
in the chamber. The Glock was modified with a chip to fire
multiple rounds with a single pull of the trigger. While
patting down Ortíz, the officers also found two loaded
Glock magazines: one high-capacity magazine with thirty
rounds, and one with fifteen rounds. Ortíz was taken
to the precinct station, where he disclosed that he had been
previously convicted of a felony and was under the
supervision of the U.S. Probation Office at the time. A grand
jury subsequently indicted Ortíz on one count of
violating 18 U.S.C. § 922(g)(1), as a convicted felon in
possession of a firearm, and the government sought forfeiture
of the firearm and ammunition under 18 U.S.C. §
ultimately decided to plead guilty without a plea agreement,
and the district court accepted the straight plea. During the
preparation of a presentence investigation report,
Ortíz explained to the probation officer that he
bought the gun on the street because he constantly feared for
his life after an incident in November 2014 during which he
was shot eight times. The shooting left him in a coma for
three months. He also expressed remorse for having the gun
and acknowledged that he knew it was illegal for him to
probation officer determined that under U.S.S.G.
§2K2.1(a)(3) of the sentencing guidelines,
Ortíz's base offense level was 22, which was
offset by three levels for acceptance of responsibility under
U.S.S.G. §3E1.1(a)-(b), for a total offense level of 19.
Shortly before the sentencing hearing, Ortíz filed a
sentencing memorandum requesting a downward departure from
the guidelines. In his memorandum and at the sentencing
hearing, Ortíz advanced a number of reasons why the
court should impose a sentence at or below the lower end of
the guidelines range. In particular, Ortíz sought a
lower sentence in light of his medical history, which
included his difficult recovery from the shooting incident,
his having had Hodgkin's lymphoma, and his need for
ongoing professional medical care. Overall, he argued that
the circumstances that led him to commit the offense,
combined with his medical circumstances, weighed in favor of
sentencing him at or below the low end of the guideline
sentencing hearing, the district court approved a three-level
reduction for acceptance of responsibility, resulting in a
guideline range of fifty-seven to seventy-one months
incarceration, and a supervised release term of at least one
but not more than three years. The court then considered
Ortíz's history, noting his two teenaged children,
his limited education and lack of employment, and his medical
history, including the cancer diagnosis and treatment, the
2014 shooting, and a twenty-year history of substance abuse.
At the same time, the district court took into account that
this was Ortíz's fourth conviction, and that it
occurred while he was on supervised release. In light of
those factors, and the nature and circumstances of the
current offense, the court determined that a sentence at the
higher end of the guideline range was sufficient but not
greater than necessary, and imposed the seventy-one month
incarcerative term and three years of supervised release.
appeal, Ortíz asserts procedural error in the district
court's allegedly pro forma consideration of his request
for a shorter sentence. He submits that the court failed to
adequately explain why a sentence at the low end of the
guidelines was not sufficient to achieve the legitimate
objective of sentencing in this case. He also argues that the
length of his prison term is substantively unreasonable.
we review a sentence for reasonableness, tantamount to a
review for abuse of discretion. United States
v. Diaz-Rodriguez, 853 F.3d 540, 547 (1st
Cir. 2017). However, when a defendant fails to preserve a
claim for procedural error in sentencing, we review for plain
error only. United States v. Perretta, 804
F.3d 53, 57 (1st Cir. 2015).
argues that he preserved his claims of procedural and
substantive error when he filed his sentencing memorandum
urging the court to impose a sentence at the lower end of the
guideline range. This argument flops, however, at least for
the procedural challenge, because he failed to object to the
claimed error at the sentencing hearing when the alleged
error occurred, even though he had a reasonable opportunity
to do so. See Puckett v. United States, 556 U.S.
129, 134 (2009) ("If a litigant believes that an error
has occurred . . . during a federal judicial proceeding, he
must object in order to preserve the issue."); cf.
United States v. Fernandez-Garay, 788 F.3d 1, 4
(1st Cir. 2015) ("A party's failure to spell out a
claim [of error] in the district court may be excused if he
had no reasonable opportunity to do so.") (citing Fed.
R. Crim. P. 51(b)). After considering various factors and
explaining the sentence imposed, the district court asked
Ortíz and the government whether they had any other
matters to raise before concluding the proceedings. To that
invitation, Ortíz's counsel expressly replied,
"Nothing further." Plain error review thus applies
to the procedural challenge because Ortíz did not
preserve that claim of error below.
establish plain error, Ortíz must show that three
conditions are satisfied: "First, there must be an error
that has not been intentionally relinquished or abandoned.
Second, the error must be plain-that is to say, clear or
obvious. Third, the error must have affected the
defendant's substantial rights." Rosales-Mireles
v. United States, 138 S.Ct. 1897, 1904 (2018) (quoting
Molina-Martinez v.United States, 136 S.Ct.
1338, 1343 (2016)). After finding those three conditions
satisfied, we should correct the error if it "seriously
affects the fairness, integrity or public reputation of
judicial proceedings." Rosales-Mireles, 138
S.Ct. at 1905 ...