          United States Court of Appeals
                     For the First Circuit


No. 18-1193

                         UNITED STATES,

                            Appellee,

                               v.

                      GIEZI ARCE-CALDERON,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

       [Hon. Carmen Consuelo Cerezo, U.S. District Judge]


                             Before

                      Howard, Chief Judge,
                Selya and Lynch, Circuit Judges.


     Thomas Trebilcock-Horan and Trebilcock & Rovira, LLC on brief
for appellant.
     Antonio L. Perez-Alonso, Assistant U.S. Attorney, Rosa Emilia
Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-
Almonte, Assistant U.S. Attorney, Chief, Appellate Division, on
brief for appellee.


                          April 1, 2020
               LYNCH,   Circuit Judge.          Giezi Arce-Calderon ("Arce")

pleaded guilty to possession of a firearm in furtherance of a drug

trafficking crime and possession with intent to distribute a

controlled substance.           The district court sentenced Arce to 108

months' imprisonment for the firearm offense and an additional six

months' imprisonment for the controlled substance offense.

               Arce   appeals    only   his     sentence   for   the    controlled

substance offense.        He argues that the sentence is procedurally

unreasonable because the district court overruled his objection to

a statement included in the Amended Pre-Sentence Investigation

Report    ("PSR").        Arce     also    argues    that     the     sentence    is

substantively unreasonable because, in his view, the court did not

consider certain information which showed a lower sentence would

have sufficed.        We find no error and so affirm.

                                          I.

A.     Facts

               On March 25, 2016, in Carolina, Puerto Rico, two Puerto

Rico   Police     Department     ("PRPD")       officers    stopped    a   car   for

violating a traffic law.           One of the officers saw a pistol near

the driver and arrested him when he did not produce a weapons

permit for the pistol.

               The officers then ordered Arce, the backseat passenger,

to step out of the car.         When Arce got out of the car, the officers

saw another pistol where Arce had been sitting.                       The officers


                                        - 2 -
arrested Arce and found an extended magazine in his pocket.            When

the PRPD later searched the car at the police station, they found

a five-gallon bucket filled with over 300 containers of marijuana.1

The PRPD also discovered that both pistols had been converted into

machineguns and so could fire automatically.

B.   Procedural History

            On March 30, 2016, a grand jury indicted Arce for

possession of a firearm in furtherance of a drug trafficking crime,

in violation of 18 U.S.C. § 924(c)(1)(A) ("Count 1"); possession

of a machinegun in furtherance of a drug trafficking crime, in

violation   of   18   U.S.C.   §   924(c)(1)(B)(ii)   ("Count   2");    and

possession with intent to distribute a controlled substance, in

violation of 21 U.S.C. § 841(a)(1) ("Count 3").

            On June 30, 2017, Arce pleaded guilty to Counts 1 and 3.

In exchange, the government agreed to dismiss Count 2.          The plea

agreement provided that Arce and the government would recommend a

different upwardly variant sentence for Count 1.          The agreement

also provided that they would together recommend for Count 3 a




     1    These containers were "twenty two (22) assorted size
pressure bags similar to zip-lock-type bags . . . , fifty five
(55) small baggies . . . , eighty five (85) small cylindrical
containers . . . [and] one hundred and fifty nine (159) medium
size cylindrical containers." Law enforcement also found eighteen
white pills, drug paraphernalia, and a gun cleaning kit in the
car.


                                   - 3 -
sentence "at the lower end of the applicable Guideline Sentencing

Range."

              The    PSR    included    information        from     the      affidavit

supporting the criminal complaint against Arce that, after his

arrest, Arce had told the officer guarding him that:                      "'Yo estaba

esperando la oportunidad, porque los iba a ser sentir la presion

de la poderosa', which means 'I was waiting for the opportunity,

because   I    was    going    to    make   you   feel    the     pressure     of   the

powerful.'"         When asked whether he was referring to the seized

gun, Arce responded "'tu sabes', which means 'you know' and [Arce

then] made a physical affirmative answer."

              Arce objected to, and denied making, this statement.                   He

argued that this statement was not "relevant conduct" and lacked

sufficient indicia of reliability.

              On    February   22,    2018,   the    district      court     overruled

Arce's objection.          It ruled that the statement was not being used

as "relevant conduct" and had sufficient indicia of reliability.

The district court then calculated Arce's guidelines range as sixty

months'   imprisonment         for   Count    1     and   zero    to   six    months'

imprisonment for Count 3.            The court stated that it had "reviewed

the applicable advisory guideline calculations and . . . ha[d]

considered the 18 [U.S.C. §] 3553(a) factors."                   The district court

considered the nature of the weapons seized from the car and the

threat Arce posed to the community.               It also considered that Arce


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was twenty-eight years old, had two daughters, had obtained a high

school diploma, and, at the time of his arrest, worked as a

refrigeration technician. The court stated that Arce had a history

of substance abuse, had no prior convictions, but did have many

prior       arrests.2     The     court    sentenced       Arce    to   108   months'

imprisonment for Count 1 and six months' imprisonment for Count 3,

with the terms to be served consecutively.                  This appeal followed.

                                           II.

               On appeal, Arce challenges only his sentence for Count

3.3

A.      Standard of Review

               Our review of a sentencing appeal is bifurcated.                 "[W]e

first       determine   whether    the    sentence     imposed     is    procedurally

reasonable       and    then    determine        whether   it     is    substantively

reasonable."       United States v. Abreu-García, 933 F.3d 1, 4 (1st

Cir. 2019) (alteration in original) (quoting United States v. Ruiz-

Huertas, 792 F.3d 223, 226 (1st Cir. 2015)).                    We review for abuse

of discretion the procedural reasonableness of Arce's sentence.

United States v. Dávila-González, 595 F.3d 42, 47 (1st Cir. 2010).


        2 Arce does not argue, and the record does not indicate,
that the district court improperly relied on Arce's past arrests.

        3 Arce's plea agreement contains a Waiver of Appeal. This
waiver bars an appeal of a Count 1 sentence "within the range of
84 to 108 months" and a Count 3 sentence at "the lower end of the
applicable guideline range." In consequence, the Waiver barred
Arce from appealing his Count 1 sentence.


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We assume favorably to Arce that abuse of discretion review applies

to   his   substantive    reasonableness      claim.4     United     States      v.

Hinkley, 803 F.3d 85, 92 (1st Cir. 2015).

B.    Procedural Reasonableness

            Arce argues on appeal that his sentence is procedurally

unreasonable because the district court should have excluded the

statement in the PSR that Arce was "'waiting for the opportunity'

to 'make [the officers] feel the pressure of the powerful," that

is, Arce's machinegun.5          This argument lacks merit.

            "Generally,      a     PSR   bears    sufficient     indicia         of

reliability    to   permit   the     district    court   to   rely   on    it   at

sentencing."      United States v. Cyr, 337 F.3d 96, 100 (1st Cir.

2003) (quoting United States v. Taylor, 277 F.3d 721, 724 (5th

Cir. 2001)).      If a defendant objects to information in the PSR, he

or   she   must   provide    "countervailing      proof."      Id.        If    the




      4   The parties dispute whether abuse of discretion or plain
error review applies to the substantive reasonableness challenge.
But we need not address this issue, because Arce's challenge fails
under either standard. See United States v. Gierbolini-Rivera,
900 F.3d 7, 14-15 (1st Cir. 2018); see also Holguin-Hernandez v.
United States, 140 S. Ct. 762, 767 (2020) (Alito, J., concurring)
(stating that, although "a defendant who requests a specific
sentence during a sentencing hearing need not object to the
sentence after its pronouncement in order to preserve a challenge
to its substantive reasonableness (i.e., length) on appeal," the
Court has not decided "what is sufficient to preserve any
'particular' substantive-reasonableness argument").

      5   Arce does not challenge the district court's calculation
of the applicable guidelines range.


                                      - 6 -
defendant's objection is "merely rhetorical," the district court

may rely on the contents of the PSR.                  Id.

             Arce      has   provided      no   countervailing       proof    that    the

statement in the PSR was unreliable. He neither offered to testify

nor provided an affidavit regarding the statement.                          Arce merely

denied in his written objection that he made the statement, and

claims that the PSR does not state how or from whom the affiant

learned of the statement.

             Moreover,       the    district       court     did     not     abuse    its

discretion        in   concluding        that   the    contested     statement       bore

sufficient indicia of reliability.                 First, as the district court

stated, the statement was "memorialized in the affidavit attached

to the Complaint . . . , which was made contemporaneous to the

events."6    See United States v. Phaneuf, 91 F.3d 255, 262 (1st Cir.

1996) (holding that the district court properly relied on the

"sworn affidavit" of the investigating officer at sentencing).

Second,     the    statement       was    detailed.         See    United    States    v.

Rodriguez, 336 F.3d 67, 71 (1st Cir. 2003) (approving of a district

court's reliance at sentencing on an "uncorroborated" proffer that

was "thorough and replete with details").                   Finally, the affidavit




     6    A district court may consider hearsay at sentencing as
long as it "has sufficient indicia of trustworthiness to warrant
a finding of probable accuracy." United States v. Rodriguez, 336
F.3d 67, 71 (1st Cir. 2003).



                                           - 7 -
states the source of the affiant's knowledge:                  "discussions and

interviews of other federal, state and local law enforcement

agents."7

C.   Substantive Reasonableness

                Arce   argues    that    his    sentence    was     substantively

unreasonable in that his sentence on Count 3 should have been zero

months, and so the cumulative sentence of 114 months was too great.

He argues the sentence was too much for a young man with no prior

convictions.

                "A sentence is substantively reasonable when . . . the

sentencing court [gives] a plausible sentencing rationale and

reached     a    defensible     result."       Abreu-García,      933   F.3d   at    6

(internal       quotation   marks   omitted)     (quoting   United      States      v.

Rodríguez-Adorno, 852 F.3d 168, 177 (1st Cir. 2017)).

                After stating that it considered all of the § 3553(a)

sentencing factors, the district court gave a plausible sentencing

rationale:        that Arce posed a "danger and . . . threat to the

safety of the community" and the sentence must "deter future

criminal behavior of this nature by [Arce]."                      The court then

reached a defensible result:            a within-guidelines sentence of six

months' imprisonment.           See United States v. Cortés-Medina, 819



     7    We need not address the government's argument that the
district court did not rely on the contested statement because any
consideration of the statement by the district court was proper.


                                        - 8 -
F.3d 566, 572 (1st Cir. 2016) ("[A] reviewing court may apply 'a

presumption of reasonableness' to a within-the-range sentence."

(quoting Rita v. United States, 551 U.S. 338, 347, 351 (2007))).8

           Arce      also   argues    that    the     sentence    is   unreasonable

because the parties jointly recommended a sentence of zero months.

Not so.   We do not "accord any decretory significance to such non-

binding recommendations -- or even . . . require a sentencing court

to   explain   why    it    decided   to     eschew    those     recommendations."

Cortés-Medina, 819 F.3d at 573.               Further, Arce argues that the

district court put too much weight on the possession of a firearm

even though Count 3 was a controlled substance offense.                    But the

court properly considered Arce's possession of a firearm as part

of the nature and circumstances of the offense, see 18 U.S.C.

§ 3553(a)(1), and the weighing of the relevant sentencing factors

is largely within the broad discretion of a sentencing court, see

United States v. Clogston, 662 F.3d 588, 593 (1st Cir. 2011).

           In fact, in reaching this result, the district court did

consider the evidence Arce claims supports a zero-month sentence

for Count 3 and found it insufficient to warrant a lower sentence.




      8   To overcome this presumption, Arce "must adduce fairly
powerful mitigating reasons and persuade us that the district court
was unreasonable in balancing pros and cons." United States v.
Llanos-Falero, 847 F.3d 29, 36 (1st Cir. 2017) (quoting Cortés–
Medina, 819 F.3d at 572). Arce has not done so.


                                      - 9 -
It was not substantively unreasonable for the court to impose some

time for the controlled substance offense.

                              III.

     Affirmed.




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