FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO Hon. Aida M. Delgado-Colón, U.S. District
Jessica E. Earl, 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. Mathews II, Assistant United States Attorney, Rosa Emilia
Rodríguez-Vélez, United States Attorney, and
Thomas F. Klumper, Assistant United States Attorney, Acting
Chief, Appellate Division, on brief for appellee.
Torruella, Lipez, and Barron, Circuit Judges.
BARRON, CIRCUIT JUDGE.
("Benítez") appeals the 120-month prison
sentence that he received after pleading guilty to being, in
violation of 18 U.S.C. § 922(g)(1), a prohibited person
in possession of a firearm. Benítez contends that the
District Court erred by classifying his prior conviction for
attempted murder under Puerto Rico law as a "crime of
violence" that triggers an increase in his base offense
level pursuant to § 2K2.1(a)(4) of the United States
Sentencing Guidelines. Benítez also contends that the
District Court's upward variance from his advisory
sentencing range under the Guidelines was procedurally
unsound and that his sentence is substantively unreasonable.
We affirm the sentence.
the execution of a search warrant at Benítez's
residence in 2013, Puerto Rico police agents found a loaded
revolver hidden behind the drawer of a nightstand. The
following day, the federal government charged Benítez,
who is a convicted felon, with one count of being a
prohibited person in possession of a firearm, in violation of
18 U.S.C. § 922(g)(1).
November of 2014, Benítez pleaded guilty to this count
pursuant to a plea agreement. Benítez, who was then
serving a ninety-year sentence for a 2014 conviction under
Puerto Rico law for aggravated robbery and related weapons
law violations,  was sentenced for this federal conviction
in January of 2017.
probation officer prepared a presentence report
("PSR") based on the November 2016 edition of the
Sentencing Guidelines. The PSR determined that §
2K2.1(a)(4) of the Guidelines applied. That guideline
establishes the base offense level that applies to a
defendant convicted of unlawful possession of a firearm if
the defendant committed that offense after having been
convicted of a felony that qualifies as a "crime of
violence." Applying that guideline, the PSR determined
that Benítez's base offense level was twenty,
when, in the absence of that guideline's application, his
base offense level would have been fourteen. See
U.S. Sentencing Guidelines Manual § 2K2.1(a)(6) (2016).
concluded that Benítez had a prior conviction that
qualified as a "crime of violence" due to his 1998
conviction for attempted murder under Puerto Rico law. The
PSR stated that this prior offense so qualified under what is
known as the "force clause" of the Sentencing
Guidelines' definition of a "crime of
also applied a four-level enhancement under §
2K2.1(b)(4)(B) to Benítez's offense level because
the firearm involved in Benítez's § 922(g)
offense had an obliterated serial number. Finally, the PSR
reduced Benítez's offense level by three levels
pursuant to § 3E1.1 due to his acceptance of
the PSR calculated Benítez's total offense level
to be twenty-one. Because the PSR assigned Benítez a
criminal history category of V, the PSR determined that
Benítez's advisory range for his term of
imprisonment under the Guidelines was seventy to eighty-seven
hearing from the parties, the District Court adopted the
PSR's Guidelines calculation. In doing so, the District
Court concluded that Benítez had "only one prior
conviction" for a "crime of violence, " namely
his 1998 attempted murder conviction under Puerto Rico law.
The District Court then sentenced Benítez to the
statutory maximum prison term of 120 months, see 18
U.S.C. § 922(a)(2), which was a term of imprisonment
just under three years above the upper end of the advisory
sentencing range under the Guidelines. The District Court
ruled that the sentence would run consecutively to any
sentence that Benítez was then serving, which would
include his ninety-year sentence for his Puerto Rico
conviction for aggravated robbery. Benítez objected to
the upward variance and then appealed the sentence.
first challenges the District Court's conclusion that he
had a prior conviction for a "crime of violence"
under § 2K2.1(a)(4). Our review of whether
Benítez's prior conviction for attempted murder
under Puerto Rico law qualifies as a "crime of
violence" under the Guidelines is de novo. See
United States v. Steed, 879 F.3d 440, 445 (1st Cir.
term "crime of violence" in § 2K2.1(a)(4) has
the same meaning as it has in the § 4B1.2
career-offender guideline. U.S. Sentencing Guidelines Manual
§ 2K2.1, cmt. n.1 (2016). Section 4B1.2(a) defines a
"crime of violence" to be any offense punishable by
more than one year of imprisonment that either "has as
an element the use, attempted use, or threatened use of
physical force against the person of another" (the
so-called force clause) or is one of several enumerated
crimes, including "murder."
contends that his prior conviction for attempted murder under
Puerto Rico law does not qualify as a "crime of
violence." He does so on the ground that this offense,
as defined at the time of his conviction, neither falls
within § 4B1.2(a)'s force clause nor matches one of
the offenses ...