From The United States District Court For The District of
puerto Rico Hon. Francisco A. Besosa, U.S. District Judge
L. Rosado-Rodríguez, Research and Writing Specialist,
Eric Alexander Vos, Federal Public Defender, and Vivianne M.
Marrero, Assistant Federal Public Defender, Supervisor,
Appeals Section, on brief for appellant.
A. Schwartz, 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 Lynch, Circuit Judges
Concepción-Montijo pled guilty to a single count of
being a felon in possession of a firearm. See 18
U.S.C. § 922(g)(1). The district court sentenced
Concepción to a 120-month statutory maximum term of
imprisonment. On appeal, Concepción argues first that
the court committed procedural error by improperly
calculating the applicable guideline sentencing range
("GSR"), and second that his sentence is
substantively unreasonable because the court undervalued
Concepción's personal circumstances.
first to his claim of procedural error, Concepción
argues that the district court improperly relied on
unauthenticated documents to apply a career-offender
enhancement based on a previous conviction for residential
burglary in Illinois. However, in adopting the probation
officer's recommended 120-month sentence -- an upward
variance from the top end of the GSR -- the district court
The probation officer has indicated that, whether or not his
offense level were 13 and his Criminal History Category
[were] IV, as argued by Mr. Concepcion, he would recommend
this sentence, and the Court agrees.
district court further justified its variance based on
"Concepción's extensive criminal history of
drug possession and trafficking and weapons possession
includ[ing] charges in the States of Illinois, New Jersey,
New Mexico, as well as in Puerto Rico."
court's words make plain, it focused not on
Concepción's Illinois residential burglary
conviction to justify its variant sentence, but rather on his
numerically and geographically expansive record of drug and
weapons charges. It thus concluded that it would have imposed
the same sentence regardless of the applicable offense level
and criminal history category. Accordingly, any error in the
calculation of Concepción's GSR was harmless.
See United States v. Magee, 834 F.3d 30, 38 (1st
next to Concepción's claim of substantive error,
we first note that "[a]lthough an appellate court must
take into account the full extent of any variance, the
dispositive question remains whether the sentence is
reasonable in light of the totality of the
circumstances." United States v.
Santiago-Rivera, 744 F.3d 229, 234 (1st Cir. 2014)
(citation omitted). "[T]he lynchpin of a reasonable
sentence is a plausible sentencing rationale and a defensible
result." Id. (quoting United States v.
Martin, 520 F.3d 87, 96 (1st Cir. 2008)). Moreover, a
court is "well within its discretion in giving greater
weight to [a defendant's] criminal history than other
factors." United States v. Arroyo-Maldonado,
791 F.3d 193, 200 (1st Cir. 2015).
the court stated that it considered "the section 3553(a)
factors, the elements of the offense, Mr. Concepcion's
participation in it, the need to promote respect for the law
and protect the public from further crimes by Mr. Concepcion,
as well as the issues of deterrence and punishment." It
further explained that it believed that
Concepción's "criminal history category,
[which the probation officer had calculated as] the highest
possible, substantially under-represents the seriousness of
his criminal history or the likelihood that he will commit
other crimes in the future." See
United States v. Flores-Machicote, 706 F.3d 16, 21 (1st
Cir. 2013) (justifying an upward variance where the
sentencing court concluded "that an asymmetry exists
which results in a substantial underestimation of the
defendant's criminal history"); United States v.
Politano, 522 F.3d 69, 74-75 (1st Cir. 2008) (justifying
an upward variance where the sentencing court concluded that
a defendant's "likelihood of recidivism was
underestimated in the Guidelines").
concluding that the statutory maximum sentence was justified
because this incident -- the attempted sale of a stolen .22
caliber rifle -- was just the latest in a pattern of serious
crimes, the district court offered a plausible rationale for
its variance grounded in both "the nature and
circumstances of the offense" and the
"characteristics of the offender." See
Santiago-Rivera, 744 F.3d at 234 (quoting
Martin, 520 F.3d at ...