          United States Court of Appeals
                      For the First Circuit

No. 16-1176

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                   RAYMOND FUENTES-ECHEVARRIA,

                      Defendant, Appellant.


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

         [Hon. José Antonio Fusté, U.S. District Judge]


                              Before

                       Howard, Chief Judge,
               Lipez and Thompson, Circuit Judges.


     Derege B. Demissie and Demissie & Church on brief for
appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá Almonte, Assistant United States Attorney, Chief,
Appellate Division, and John A. Mathews II, Assistant United States
Attorney, on brief for appellee.


                           May 1, 2017
            HOWARD,      Chief   Judge.         Raymond       Fuentes-Echevarria

challenges the procedural reasonableness of a forty-eight-month

sentence imposed following his guilty plea for illegal possession

of a machine gun.         He also brings an ineffective assistance of

counsel claim. After careful consideration, we affirm his sentence

and dismiss his ineffective assistance claim without prejudice.

                                        I.

            On September 15, 2014, police officers stopped Fuentes,

who was driving his Honda Accord in reverse in the middle of a

street, near a known drug trafficking point in San Juan, Puerto

Rico.1     While one officer issued a ticket to Fuentes, a canine

trained    to   detect   narcotics,     accompanied     by     another    officer,

marked two separate locations on Fuentes's vehicle.                   Fuentes fled

the scene and was not arrested.

            Officers      subsequently         sealed     Fuentes's       vehicle,

transported it to police headquarters, and obtained a search

warrant.     A subsequent search of the vehicle revealed a secret

compartment     near     the   center    of    the   dashboard.          From   the

compartment, officers seized a .40 Glock pistol modified to fire

automatically,      several      gun    magazines,      and     108    rounds    of

ammunition.     On September 18, 2014, a grand jury returned a sealed



     1 We draw these facts -- to which Fuentes did not object --
from the change-of-plea colloquy and transcript of the sentencing
hearing.


                                       - 2 -
indictment charging Fuentes with illegal possession of a machine

gun, in violation of 18 U.S.C. § 922(o) and § 924(a)(2).

            Fuentes was arrested about a year later, in July 2015.

He initially pled not guilty, and a trial was scheduled.      But he

ultimately moved to change his plea mere days before the trial was

set to begin, and entered a straight plea -- that is, without a

plea agreement -- to the sole charge in the indictment.

            Fuentes's Presentence Report ("PSR"), to which he did

not object, indicated that his criminal history category was I,

and that his Base Offense Level ("BOL") was eighteen, pursuant to

U.S.S.G.    §2K2.1(a)(5).     However,   because   Fuentes   accepted

responsibility, his total offense level ("TOL") was reduced to

sixteen, see U.S.S.G. §3.E1.1(a), thus setting the applicable

Guidelines Sentencing Range ("GSR") at twenty-one to twenty-seven

months.    At the sentencing hearing, Fuentes recommended a bottom-

of-the-GSR sentence of twenty-one months, while the government

asked for sixty.     After reviewing the facts of this case and

expressing a heightened need for community deterrence, the judge

sentenced Fuentes to forty-eight months' imprisonment, followed by

thirty-six months of supervised release.

            On appeal, Fuentes challenges the reasonableness of his

sentence on two grounds. He contends that the district court erred

by failing to apply an additional one-level reduction to his TOL

for acceptance of responsibility under §3E1.1(b).     He also argues


                                - 3 -
that the district court's reliance on certain community factors

did not justify the upward variance.       Finally, Fuentes brings an

ineffective assistance of counsel claim.      We address each in turn.

                                   II.

A. Sentencing Challenges

             We review criminal sentences "under a deferential abuse-

of-discretion standard."     United States v. Martin, 520 F.3d 87, 92

(1st Cir. 2008) (quoting Gall v. United States, 552 U.S. 38, 56

(2007)).      In applying this standard, we examine a sentence's

procedural    and   substantive   reasonableness.   United    States   v.

Dávila–González, 595 F.3d 42, 47 (1st Cir. 2010).          Here, Fuentes

assigns only procedural errors to his sentence.       See Martin, 520

F.3d at 92 (noting that "failing to calculate (or improperly

calculating) the Guidelines range" is procedural); United States

v. Narváez–Soto, 773 F.3d. 282, 286-87 (1st Cir. 2014) (treating

a   challenge       about   purportedly    impermissible      sentencing

considerations as procedural).      Unpreserved procedural challenges

engender plain error review.      Dávila–González, 595 F.3d at 47.     In

these circumstances, we will reverse the district court only upon

a showing "(1) that an error occurred (2) which was clear or

obvious and which not only (3) affected the defendant's substantial

rights, but also (4) seriously impaired the fairness, integrity,




                                  - 4 -
or public reputation of judicial proceedings."                United States v.

Duarte, 246 F.3d 56, 60 (1st Cir. 2001)

            First, Fuentes argues that while the district court

appropriately     reduced   his    TOL    by   two   levels    under    U.S.S.G.

§3E1.1(a)   for   acceptance      of   responsibility,    it    erred    by   not

reducing the TOL by an additional level under §3E1.1(b).                Section

3E1.1(b) provides, in relevant part: "If the defendant qualifies

for a decrease under subsection (a), the [BOL] determined prior to

the operation of subsection (a) is level 16 or greater, and upon

motion of the government       . . .      decrease the offense level by 1

additional level."      U.S.S.G. §3E1.1(b) (emphasis added).                  The

government did not make such a motion, and Fuentes did not request

it either in opposition to the PSR or during sentencing.

            We need not decide -- as the government suggests --

whether Fuentes waived or merely forfeited his challenge by failing

to raise it below, as his claim falters on plain error review.

See, e.g., United States v. Acevedo-Sueros, 826 F.3d 21, 24 (1st

Cir. 2016).   The district court did not commit an error, plain or

otherwise, in not granting the additional reduction sua sponte.

As we have previously held in Acevedo-Sueros, 826 F.3d at 24, not

only does the plain text of §3E1.1(b) provide that the government

must first make a motion for the reduction,2 but the relevant


     2 Although there are some exceptions to the government-motion
requirement, see United States v. Beatty, 538 F.3d 8, 14-15 (1st


                                       - 5 -
commentary    for   this   section      also   emphasizes   the     government's

discretion to refuse to do so:

             Because the Government is in the best position
             to determine whether the defendant has
             assisted authorities in a manner that avoids
             preparing for trial, an adjustment under
             subsection (b) may only be granted upon a
             formal motion by the Government at the time of
             sentencing.


Acevedo-Sueros, 826 F.3d at 24 (quoting §3E.1.1(b) cmt. n.6).

Accordingly, the district court did not err in not awarding the

additional reduction.

             Discerning    no   error    on    this   front,   we    proceed   to

Fuentes's next challenge, which he preserved below.                      Fuentes

maintains that the court's decision to impose a forty-eight-month

variant sentence "lacked factual support,"3 because it was heavily

premised on the court's concern with "general violence" in the

community.     For instance, he points to the sentencing court's

statement that it was "sick and tired of violent crimes and guns."

He posits that the court went "too far" in "speculat[ing] about




Cir. 2008), Fuentes does not assert that they apply here, nor does
the record suggest that they would.
     3 Fuentes also makes a cursory reference to the court's
"incorrect finding" about his "drug abuse," which was considered
in connection with his supervised release conditions. However, he
only develops a challenge to his incarcerative sentence on appeal,
so any argument to this effect is waived. See United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990).


                                     - 6 -
the lives of violent criminals," at the expense of failing to

consider facts specific to his case.4

          When a court imposes a variant sentence, "its reasons

for doing so 'should typically be rooted either in the nature and

circumstances    of   the   offense   or   the   characteristics   of   the

offender.'"     United States v. Flores-Machicote, 706 F.3d 16, 21

(1st Cir. 2013) (quoting Martin, 520 F.3d at 91).          While Fuentes

is correct that the court had an eye towards community deterrence

in fashioning his sentence, we have "repeatedly" explained that

"[d]eterrence is widely recognized as an important factor in the

sentencing calculus."       United States v. Díaz–Arroyo, 797 F.3d 125,

129 (1st Cir. 2015) (quoting Flores-Machicote, 706 F.3d at 23)

(alteration in original); see also 18 U.S.C. § 3553(a)(2)(B).

Indeed, community context can "inform[] and contextualize[] the

relevant need for deterrence."        Flores-Machicote, 706 F.3d at 23.

The district court did not abuse its discretion by allowing its

assessment that there was an "arsenal [of weapons] out there in



     4 Fuentes's attempt to liken his case to United States v.
Ofray-Campos, 534 F.3d 1, 43 (1st Cir. 2008), falls short.      In
that case, we vacated an above-Guidelines sentence that exceeded
the top of the recommended GSR by twenty-four years and was the
statutory maximum for that offense.    Not only was the variance
here vastly more limited -- Fuentes's sentence was twenty-one
months above the GSR maximum of twenty-seven months and well under
the statutory maximum of ten years, see 18 U.S.C. § 924(a)(2) --
but the district court's explanation here was much more
particularized and persuasive than was the explanation in Ofray-
Campos. 534 F.3d at 43-44.


                                   - 7 -
the streets" to bear on its conclusion that a strong deterrent was

warranted in this case.

           Although "[i]t is possible for a sentencing judge to

focus too much on the community and too little on the individual,"

id. at 24, that did not happen here.                The sentencing court

identified several case-specific factors, beyond the need for

general deterrence, to support its view that Fuentes's offense was

"out of line with a heartland case" for which the calculated GSR

would have been appropriate.            Among these were the fact that

Fuentes's modified firearm was housed in a secret compartment, and

that it was found with extended magazines and 108 rounds of

ammunition,   some   of   which   was    suitable   for    an   AK-47   rifle.

Moreover, the court found it significant that Fuentes's traffic

stop occurred near a known drug trafficking area, and that he fled

the scene.    The sentencing judge's discussion of these case-

specific   facts   blunts   Fuentes's     claim   that    community     factors

improperly shaded his variant sentence.5


     5  To the extent that Fuentes advances a substantive
reasonableness challenge, it also fails.       The district court
articulated a "plausible rationale" and "defensible result."
Martin, 520 F.3d at 98; see also, e.g., Flores-Machicote, 706 F.3d
at 22, 25 (affirming a five-year sentence that exceeded the GSR
maximum of forty-one months when the offense conduct involved a
"high-caliber weapon with a large-capacity magazine"); Díaz–
Arroyo, 797 F.3d at 130 (upholding a forty-eight-month variant
sentence as reasonable in light of "the defendant's checkered
criminal history and the community's burgeoning problems with
violent crime linked to the illegal possession and use of
firearms").


                                  - 8 -
B.   Ineffective Assistance of Counsel Claim

           Finally, we decline to address Fuentes's claims that his

counsel was ineffective for failing to ask for the additional one-

level reduction in Fuentes's TOL and for apparently "conce[ding]

that [Fuentes] had no other purpose than to use the weapon to

commit   crimes."     Unless   counsel's   prejudicially   deficient

performance is "manifestly apparent from the record," we do not

entertain ineffective assistance claims on direct appeal.    United

States v. Rivera-Gonzalez, 626 F.3d 639, 644 (1st Cir. 2010)

(quoting United States v. Wyatt, 561 F.3d 49, 52 (1st Cir. 2009)).

Such an "extraordinary circumstance[]" is not apparent in the

record before us.   United States v. Hicks, 531 F.3d 49, 55 (1st

Cir. 2008) (quoting United States v. Martins, 413 F.3d 139, 155

(1st Cir. 2005)).   Thus, we dismiss this claim without prejudice,

leaving Fuentes free to raise it in a collateral proceeding under

28 U.S.C. § 2255.

                                III.

           For the foregoing reasons, we affirm Fuentes's sentence

and dismiss his ineffective-assistance claim without prejudice.




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