          United States Court of Appeals
                     For the First Circuit


No. 17-1763

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                 ELVIN ANTONIO RIVERA-SANTIAGO,

                      Defendant, Appellant.


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

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


                             Before

                    Lynch, Selya, and Lipez,
                         Circuit Judges.


     Kendys Pimentel-Soto and Kendys Pimentel-Soto Law Office on
brief for appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and B. Kathryn Debrason, Assistant United
States Attorney, on brief for appellee.


                         March 22, 2019
             LIPEZ,      Circuit       Judge.             Claiming       procedural

unreasonableness,        Elvin   Antonio       Rivera-Santiago         appeals   his

48-month sentence for unlawfully possessing a firearm. He contends

that the district court failed to adequately explain its reasons

for imposing an above-guideline sentence, that a variant sentence

was not supported by the record, and that the district court

"relied on erroneous facts."           After careful review, we affirm.

                                        I.

             Given that this appeal follows a guilty plea, "we draw

the relevant facts from the plea agreement, the change-of-plea

colloquy, the undisputed portions of the presentence investigation

report ("PSR"), and the transcript of the disposition hearing."

United    States   v.    O'Brien,     870   F.3d    11,   14    (1st   Cir.   2017).

Rivera-Santiago was charged with being a felon in possession of a

firearm    after   police    officers       found   firearms,     magazines,     and

ammunition    at   the    home   he    shared      with   his   partner    and   his

seven-year-old daughter, which the officers searched pursuant to

a search warrant, and in his vehicle, which they obtained his

consent to search.        Specifically, the officers found: two empty,

large-capacity .40-caliber magazines for a Glock pistol and forty-

two rounds of .40-caliber ammunition in the bedroom closet; a Glock

pistol loaded with twenty-one rounds of .40-caliber ammunition on

the driver's seat of Rivera-Santiago's vehicle; another Glock

pistol loaded with forty-eight rounds of .40-caliber ammunition


                                       - 2 -
underneath        the     driver's   seat;     and   three    Glock       .40-caliber

magazines, containing a total of sixteen rounds of ammunition, in

the driver's-side door pocket.               The officers also found a "chip"

used       to   convert    semi-automatic      Glocks     into     fully    automatic

firearms on top of a gun cleaning kit on the kitchen counter.

Rivera-Santiago           admitted   to      possessing      all    the     firearms,

magazines, and ammunition.            He had previously been convicted of

illegal possession of a firearm as a prohibited person and was

serving a 36-month term of federal supervised release for the prior

conviction at the time of his arrest.

                Pursuant to the plea agreement, Rivera-Santiago pleaded

guilty to count one of a two-count indictment, illegal possession

of a firearm by a convicted felon, in violation of 18 U.S.C.

§§ 922(g)(1) and 924(a)(2).1               The parties agreed to recommend

sentences         within     the     applicable      guideline        range,     with

Rivera-Santiago permitted to "request a sentence at the lower end

of the applicable guideline range while the United States may

request a sentence at the upper end."

                The PSR calculated Rivera-Santiago's total offense level

at 17 and his criminal history category at III, for a guideline




       1As part of the plea agreement, the government moved at
sentencing to dismiss count two, which charged him with illegal
possession of a machine gun, 18 U.S.C. §§ 922(o) and 924(a)(2),
based on his possession of the "chip." The district court granted
the motion.


                                          - 3 -
range of 30 to 37 months.            The calculation took into account

Rivera-Santiago's prior conviction for possession of a stolen

semi-automatic firearm with an extended magazine and additional

loaded magazines, and his commission of the current offense while

on supervised release.      Neither side objected to the PSR.

           At the sentencing hearing, defense counsel requested a

low-end guideline sentence of 30 months while the government

requested an upper-end guideline sentence of 37 months.              Defense

counsel   highlighted,      inter    alia,    Rivera-Santiago's    difficult

upbringing and the fact that he faced a sentence of incarceration

in the pending revocation matter.            The government noted that (1)

the offense involved two weapons and several extended magazines;

(2) the conduct was essentially the same as that underlying Rivera-

Santiago's prior conviction; (3) he committed the present offense

while less than a year out of prison and still on supervised

release; and (4) he had committed several rules violations while

incarcerated awaiting sentencing.            As noted in the PSR, Rivera-

Santiago's incarceration infractions included circulating money

illegally inside the prison, "refusing to obey an order," and

"being insolent [to] staff."           The government argued that his

behavior, in general, exhibited a "serious disrespect for the law

and authority."

           The   district    court    agreed    with   the   guideline   range

specified by the PSR, i.e., 30 to 37 months.                 The court then


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addressed the sentencing factors prescribed by 18 U.S.C. § 3553(a).

It noted Rivera-Santiago's personal characteristics, including his

parenthood, and pointed out that he had committed the present

offense while on supervised release for his prior conviction.               The

court also catalogued the two semi-automatic weapons, multiple

extended magazines, and multiple rounds of ammunition that were in

his possession. After stating that it had considered the § 3553(a)

factors, "the serious nature of the offense of conviction, the

type of weapon and the [amount] of ammunition involved, [and] the

defendant's    criminal      history,"   the   court   imposed   a    48-month

variant sentence.      Defense counsel immediately "object[ed] to the

varian[t] sentence as procedurally unreasonable," without further

elaboration.      In response, the court replied, "I believe the

circumstances of this defendant fully justifies the [c]ourt's

sentence.     He's putting at risk his own safety and that of the

community.      He's   not    protecting    himself,    his   child    or   the

community.     It's a very serious offense and circumstances that he

was involved with."       This timely appeal followed.2



     2  The government properly concedes that the appeal waiver in
the plea agreement does not apply.         See United States v.
Montalvo-Cruz, 745 F.3d 583, 584 n.1 (1st Cir. 2014) ("Because the
district court did not follow [the parties' sentencing]
recommendation, the waiver of appeal does not apply.").        The
government also generally acknowledges that the district court
imposed an above-guideline sentence despite the government's
occasional, erroneous references in its appellate brief to a "mid-
range" or a "lower-end, within-guidelines sentence."


                                    - 5 -
                                      II.

             Rivera-Santiago    contends       that   the    48-month    sentence

imposed by the district court is procedurally unreasonable because

(1) the court failed to adequately explain its variant sentence,

which he claims was not supported by the record; and (2) the court

"relied on erroneous facts."3             The parties dispute whether he

adequately preserved his objections and thus disagree as to the

standards    of    review.     Because    we    would   affirm    the    sentence

regardless    of   the   standard,   we     assume,     favorably   to    Rivera-

Santiago, that he preserved his objections.                 We therefore review

the district court's imposition of a variant sentence for abuse of

discretion and its factfinding for clear error.               See United States

v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir. 2015).

A. Justification for Variant Sentence

             Rivera-Santiago argues that his sentence is procedurally

unreasonable because there is no basis for distinguishing his case

from the "run-of-the-mill" felon-in-possession case contemplated

by the guideline sentencing range, and because "[n]o particular

circumstance was pointed out by the district court to adequately


     3  To the extent Rivera-Santiago intended to bring a
substantive unreasonableness claim, he has waived such a claim by
failing to develop it beyond a few passing references in his brief.
See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). Such
a claim is, in any event, unavailing because the district court
offered a plausible rationale for the sentence and arrived at a
defensible result, as further explained below. See United States
v. Mangual-Rosado, 907 F.3d 107, 111 (1st Cir. 2018).


                                     - 6 -
support a varian[t] sentence."

             It is well established that a district court may vary

above or below a guideline range so long as it "offer[s] a

'plausible and coherent rationale' for its variance."                        United

States v. Alejandro-Rosado, 878 F.3d 435, 439 (1st Cir. 2017)

(quoting United States v. Guzman-Fernandez, 824 F.3d 173, 178 (1st

Cir. 2016)).      When a § 3553(a) consideration is already accounted

for in the guideline range, a sentencing court "must articulate

specifically      the    reasons    that        this    particular       defendant's

situation is different from the ordinary situation covered by the

guidelines      calculation."       Guzman-Fernandez,          824    F.3d   at   177

(quoting United States v. Zapete-Garcia, 447 F.3d 57, 60 (1st Cir.

2006)).

             Here,     the   district    court     offered    "a     plausible    and

coherent     rationale"       for   its         eleven-month       variance.      See

Alejandro-Rosado, 878 F.3d at 440.                The court highlighted that

Rivera-Santiago had committed the offense while on supervised

release for essentially the same offense, and that he possessed

two semi-automatic weapons and a stash of large-capacity magazines

and ammunition in his family home and in his vehicle.                             The

sentencing range calculated by the district court would apply to

a   defendant    who    possessed   a    single        firearm,    see   U.S.S.G.   §

2K2.1(a)(4)(B), who had been convicted of any crime punishable by

imprisonment for a term exceeding one year, see id. § 2K2.1 cmt.


                                        - 7 -
3 (citing 18 U.S.C. § 922(g)), and who had committed the present

offense while on supervised release for any prior offense, see id.

§ 4A1.1(d). Thus, the district court noted precisely those factors

that     differentiate          Rivera-Santiago's      offense         from   the

"run-of-the-mill" felon-in-possession offense contemplated by the

guidelines.

B. Reliance on Erroneous Facts

             Rivera-Santiago also contends that the district court's

comments     after       defense    counsel    objected    to    the     sentence

demonstrate that the court relied on erroneous facts, namely (1)

that Rivera-Santiago had put the safety of his family and the

community at risk, and (2) that his offense was "very serious."

We disagree.

             The district court's comments invoked only undisputed

facts supported by the record.           It is a foundational principle of

the felon-in-possession statute that a felon's unlawful possession

of firearms presents a danger to society.              See United States v.

Doe, 960 F.2d 221, 225 (1st Cir. 1992) ("[L]egislators, when

enacting the felon-in-possession statute, repeatedly referred to

the danger that a gun, in the hands of a previously convicted

felon,   poses     for    the   public.").      Further,   Rivera-Santiago's

possession    of     multiple      semi-automatic   weapons,    large-capacity

magazines, and ammunition unsecured and accessible in his vehicle

and in the home he shared with his partner and minor daughter


                                       - 8 -
presented a danger to his family and society above and beyond a

generic felon-in-possession case.         It was also reasonable for the

court to conclude that the offense was "very serious" given that

Rivera-Santiago's     possession   of    semi-automatic     firearms   while

still on supervised release for unlawfully possessing a semi-

automatic weapon demonstrated a lack of respect for the law and

the absence of rehabilitation.         For these reasons, the court did

not   rely    on   erroneous   facts     in   imposing    Rivera-Santiago's

sentence.

                                   III.

             Concluding    for     the        foregoing     reasons     that

Rivera-Santiago's 48-month variant sentence was not procedurally

unreasonable, we affirm.

             So ordered.




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