          United States Court of Appeals
                       For the First Circuit


Nos. 11-1242,
     11-1244,
     11-1245

                           UNITED STATES,

                             Appellee,

                                 v.

                LEONEL DAVID MALDONADO-ESCARFULLERY,

                       Defendant, Appellant.


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

          [Hon. Gustavo A. Gelpí, U.S. District Judge]


                               Before

                        Lynch, Chief Judge,
                 Boudin and Lipez, Circuit Judges.



     Elaine Mittleman on brief for appellant.
     Rosa Emilia Rodriguez-Velez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, and Julia M.
Meconiates, Assistant United States Attorney, on brief for
appellee.



                          August 20, 2012
            LYNCH, Chief Judge. On February 2, 2011, the district

court, at a consolidated hearing, sentenced defendant Leonel David

Maldonado-Escarfullery to seventy-two months' imprisonment pursuant

to the defendant's guilty pleas on firearms charges in three cases.

Maldonado-Escarfullery now challenges that sentence.                   We affirm.

            Because this sentencing appeal follows a guilty plea, we

draw the facts from the unchallenged portions of the presentence

investigation report and the transcript of the sentencing hearing.

United States v. Madera-Ortiz, 637 F.3d 26, 28 (1st Cir. 2011).

            There were three criminal firearms schemes, resulting in

three prosecutions.        In December 2008 and January and March 2009,

Maldonado-Escarfullery offered to ship firearms from Florida to an

associate   in   Puerto     Rico    for    sale     at   a   profit.     Maldonado-

Escarfullery, who was an employee of FedEx at the time, would

purchase the firearms in Florida and ship them to Puerto Rico by

FedEx. On March 4, 2009, FedEx personnel in Puerto Rico discovered

three packages containing firearms and contacted the local office

of the Bureau of Alcohol, Tobacco, and Firearms (ATF).                   ATF agents

then conducted a controlled delivery of the firearms to Maldonado-

Escarfullery's     associate,       who     confessed        and   implicated   the

defendant. Based on these activities, on March 25, 2009, a federal

grand jury returned a four-count indictment charging Maldonado-

Escarfullery with, inter alia, shipment of firearms in interstate

commerce    to   someone    other    than       a   licensed   dealer,    importer,


                                          -2-
manufacturer or collector, in violation of 18 U.S.C. § 922(e)

("Case 09-109").

            In the second scheme, from August 2008 through March

2009, Maldonado-Escarfullery participated in a separate plan to

ship firearms to another associate in Puerto Rico.                 Before   March

2009,    Maldonado-Escarfullery       had    delivered    approximately      five

packages containing firearms to this associate; during March 2009,

he delivered two more packages containing a total of fourteen

firearms.       On August 14, 2009, a federal grand jury returned a

five-count superseding indictment charging Maldonado-Escarfullery

with,    inter   alia,   conspiracy    to    deal   firearms   in    interstate

commerce, in violation of 18 U.S.C. §§ 371 and 922(a)(1)(A) ("Case

09-143").

            Maldonado-Escarfullery was arrested in Florida by ATF

agents on April 23, 2009.             He agreed to cooperate with the

government, including by testifying against his coconspirators

before a grand jury, and he was released on a $50,000 bond.                    On

August    26,    2009,   at   a   change    of   plea   hearing,     Maldonado-

Escarfullery      pled guilty to one count in Case 09-109 and one count

in Case 09-143.

            Significantly, while he was free on bond, had signed a

cooperation agreement, and was awaiting sentencing, Maldonado-

Escarfullery broke the law again. He shipped firearms from Florida

to Puerto Rico.      He was arrested in Florida in October 2010, and


                                       -3-
his probation officer advised the court of the arrest on October

19, 2010.   Maldonado-Escarfullery was transferred from Florida to

Puerto Rico to appear at a show cause hearing on November 4, 2010,

where his bail was revoked.      On November 30, 2010, Maldonado-

Escarfullery pled guilty to one count of dealing firearms in

violation of 18 U.S.C. § 922(a)(1)(A) ("Case 10-447").

            On February 2, 2011, the district court in Puerto Rico

held a consolidated sentencing hearing in the three cases.     Under

the plea agreements, the government recommended sentences of 12

months and one day for Case 09-109; 30 months for Case 09-143, to

run concurrently with the sentence for Case 09-109; and 57 months

for Case 10-447, with no recommendation as to whether that sentence

should run concurrently with the others.      Maldonado-Escarfully

maintained that all three sentences should run concurrently.   This

argument would have meant a maximum term of imprisonment of 57

months.

            The court calculated the Sentencing Guidelines range by

grouping the counts of conviction together, since they involved two

or more acts connected by a common criminal objective or scheme.

U.S.S.G. § 3D1.2(b).    The court determined that the base offense

level was 14, id. § 2K2.1(a)(6), then added a six-level increase

for an offense involving 25 to 99 firearms, id. § 2K2.1(b)(1)(C),1


     1
       According to the transcript of the sentencing hearing, the
district court judge apparently stated that he was adding a four-
level increase for this factor.      However, the court's other

                                 -4-
a   four-level     increase     for     trafficking        in     firearms,      id.

§ 2K2.1(b)(5), and a four-level increase for reason to believe that

the firearms would be used in connection with another felony, id.

§   2K2.1(b)(6).     The   court      then   subtracted     three      levels    for

acceptance of responsibility. Id. § 3E1.1(a)-(b). With an offense

level of 25 and a criminal history category of I, Maldonado-

Escarfullery's     Guidelines      range      was     57   to    71     months   of

imprisonment.      The combined statutory maximums were, of course,

longer.

           After     considering        the         Guidelines        range,     the

recommendations in the plea agreements, and the arguments of

counsel, the court sentenced Maldonado-Escarfullery to 12 months

and one day for Case 09-109; 15 months for Case 09-143 (less than

the government recommended), to be served concurrently; and 57

months for Case 10-447, to be served consecutively, for a total

term of imprisonment of 72 months. Maldonado-Escarfullery objected

to the consecutive sentence.          He timely appealed his sentence on

February 11, 2011.

           Maldonado-Escarfullery          now   argues    that    the    district

court's sentence was an abuse of discretion, saying the court

failed to comply with 18 U.S.C. § 3584(b), which requires a court


calculations show that he in fact added six levels, as was proper
under the November 1, 2009 edition of the Guidelines, which the
judge stated he was using. Neither party objected to this apparent
discrepancy during the hearing, and neither raises it as an issue
on appeal.

                                       -5-
to consider the statutory sentencing factors under 18 U.S.C.

§ 3553(a) when deciding whether multiple sentences of imprisonment

will       be    served     concurrently      or     consecutively.         We   evaluate

Maldonado-Escarfullery's              claim     under    an   abuse    of    discretion

standard. United States v. Carrasco-de-Jesús, 589 F.3d 22, 26 (1st

Cir. 2009) (citing Gall v. United States, 552 U.S. 38, 51 (2007)).

Review of a sentence under this standard generally involves a two-

step process: First, we determine whether the district court

committed procedural error.                Second, if there was no procedural

error,          we     determine   whether     the    sentence   was    substantively

reasonable.             Gall, 552 U.S. at 51.        Taking defendant to allege on

appeal both types of error, the claim fails.2

                     The record shows that the district court did consider the

statutory sentencing factors when it imposed a consecutive sentence

for Case 10-447.            The court referred to section 3553(a) throughout

the sentencing hearing, though not always by name.                      For instance,

when announcing its sentence, the court stated that the defendant's



       2
       The government argues, briefly, that the waivers of appeal
in Maldonado-Escarfullery's plea agreements bar any claims here as
to Cases 09-109 and 10-447, because in both of those cases the
district court imposed the sentences recommended by the agreements.
However, with regard to Case 10-447, the plea agreement did not
make any recommendation as to whether the sentence should run
concurrently or consecutively.        Since the district court's
imposition of a consecutive sentence in Case 10-447 is the subject
of Maldonado-Escarfullery's challenge on appeal, his claim before
this court falls outside the scope of the waivers of appeal. He
does not challenge the number of months imposed in either case,
which his waivers would have prohibited.

                                              -6-
request of 57 months concurrent was "not sufficient under the

sufficient but not greater than necessary standard" -- that is, the

standard laid out in section 3553(a).                    The court also repeatedly

emphasized the need for a consecutive sentence in Case 10-447 in

light of Maldonado-Escarfullery's breach of the court's trust by

committing another firearms offense while free on bond.                        That is a

sentencing factor consideration.                    See 18 U.S.C. § 3553(a)(2)(A)

(directing court to consider "the need . . . to promote respect for

the law").

             The         court     also   carefully    considered     arguments      from

defendant's counsel regarding Maldonado-Escarfullery's cooperation

with   the       government         in    apprehending    other      members    of   the

conspiracy, and as a result the court granted a 15-month downward

variance from the government's recommended sentence in Case 09-143.

See    id.       §       3553(a)(1)       (directing   court    to    consider       "the

history      .       .    .   of    the    defendant").        Finally,    Maldonado-

Escarfullery's counsel specifically recognized that the court had

considered the relevant factors, stating during his argument for

reconsideration of the sentence: "Your Honor, I know that you have

stated that the [sic] 3553 has been satisfied and the only way is

to impose a consecutive sentence."

             In the context of the entire sentencing hearing, this was

more than enough.             See United States v. Dávila-González, 595 F.3d

42, 49 (1st Cir. 2010) ("Although the court did not specifically


                                              -7-
reference the factors that the appellant now highlights, the

sentencing transcript, read as a whole, evinces a sufficient

weighing of the section 3553(a) factors."); Carrasco-de-Jesús, 589

F.3d at 29 ("The court's statement of its reasons for its choice of

a   sentence   plainly   takes   into    account   the   section   3553(a)

factors.").    The district court had an ample basis to impose a

consecutive sentence for Case 10-447.

           The sentence is affirmed.




                                   -8-
