          United States Court of Appeals
                     For the First Circuit
No. 13-2551

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                  LUIS DANIEL ORTIZ-RODRÍGUEZ,

                      Defendant, Appellant.



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

         [Hon. Francisco A. Besosa, U.S. District Judge]



                             Before

                   Howard, Lipez, and Barron,
                         Circuit Judges.



     José R. Olmo-Rodríguez on brief for appellant.
     Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, and Rosa Emilia Rodriguez-Velez, United
States Attorney, on brief for appellee.



                          June 10, 2015
            BARRON, Circuit Judge.         The defendant, Luis D. Ortiz-

Rodríguez, received a 48-month prison term after entering a guilty

plea to one count of cocaine trafficking in violation of 21 U.S.C.

§ 841(a)(1).      Ortiz now challenges the procedural reasonableness

of that sentence due to the District Court's upward variance from

the applicable sentencing range under the Sentencing Guidelines

with what Ortiz contends was insufficient justification.              For the

reasons that follow, we vacate Ortiz's sentence and remand for re-

sentencing.

                                      I.

            At    sentencing,   the    District        Court    reviewed   the

guidelines calculation set forth in the pre-sentence investigation

report.    The report stated that the base offense level for an

offense involving less than 25 grams of cocaine was 12.                    See

U.S.S.G. § 2D1.1(c)(14) (2013).            The report further stated that

Ortiz also was subject to a two-point enhancement for the use of

firearms, as well as a two-point deduction for acceptance of

responsibility in consequence of his plea.         See id. § 2D1.1(b)(1);

id.   §   3E1.1(a).     Thus,   the   report     set    forth   a   guidelines

calculation that produced a recommended sentencing range of 10 to

16 months.       The statutory maximum for the offense is 20 years.

See 21 U.S.C. § 841(b)(1)(C).



                                  - 2 -
            The plea agreement, filed on July 24, 2013, contained an

alternate     guidelines     calculation.          The    plea    agreement's

calculation yielded a sentencing range of 27 to 33 months.                    The

agreement   then    recommended   a     sentence    of   33   months.     That

recommendation was not binding, however, as the plea agreement

provided that Ortiz's sentence would be "left entirely to the sound

discretion"    of   the    District    Court.      See   Fed.    R.   Crim.    P.

11(c)(3)(B).    And, in any event, the plea agreement's guidelines

calculation was incorrect.            The calculation included numerous

sentencing enhancements that the record did not support.1


     1 The pre-sentence report diverged from the calculation in
the plea agreement and explained that:
          The Plea Agreement contemplates several
          guideline    enhancements    which    are   not
          applicable in this case.      For example, the
          enhancement   for   use   of   violence   (USSG
          § 2D1.1(b)(2)) and for reckless endangerment
          during flight (USSG § 3C1.2) are not supported
          by the evidence on record.        There is no
          evidence that the defendant used violence in
          the commission of the offense or that he
          attempted to flee, let alone that he
          recklessly created a substantial risk of death
          or serious bodily injury to another person
          during the flight.      Furthermore, the plea
          agreement contemplates a two level enhancement
          under   USSG    §   2D1.1(b)(14)(E)    [offense
          committed as part of a pattern of criminal
          conduct engaged in as a livelihood]. However,
          in order for said enhancement to apply, it is
          necessary that the defendant receives an
          aggravating   role   adjustment    under   USSG
          § 3B1.2. In this case, an enhancement under
          USSG § 3B1.2 is neither contemplated by the
          plea agreement nor justified by the evidence
                               - 3 -
             The District Court followed neither the recommendation

in the pre-sentence report nor the recommendation in the plea

agreement.     The District Court explained that "even though Mr.

Ortiz did not plead guilty to a weapons offense, the Court cannot

disregard the fact that he participated in an offense that involved

firearms and that those firearms were fired during the offense."2

In that regard, the District Court referenced the conduct of

Ortiz's co-defendants, who had fired guns into the air from a

different vehicle while Ortiz was driving nearby.

             The   District   Court    then   proceeded   to   describe   the

evidence found in Ortiz's car at the time of arrest.           According to

that summation, there was a bullet on the floor of the driver's

side of Ortiz's car.       Ortiz also had a fanny pack around his leg

that contained 18 rounds of .357-caliber ammunition and a sandwich

bag containing a leafy green substance that field-tested positive

for marijuana.        A leafy green substance (that also field-tested

positive for marijuana) was also found on Ortiz in his front

pocket.   In addition, there were two duffel bags in the trunk of

the   car,    which     contained     clothing,   marijuana,    four   rifle

magazines, cocaine packaged for sale, a single drum magazine, a



          on the record.
      2Although a firearm count had been included in the original
indictment, Ortiz had entered a guilty plea on only one count of
drug trafficking.
                              - 4 -
double    drum   magazine,   and     four    pistol   magazines   containing

ammunition.

            The District Court emphasized the firearms involved:

            Once again, we find ourselves in a case
            involving firearms in this District, involving
            a young man with firearms or ammunition,
            magazines, that sell pretty expensively on the
            streets, and the person who possesses them,
            like Mr. Ortiz, appears not to have the means
            to purchase those type of things. Everybody
            knows that gun crimes are pervasive throughout
            the island, and I have to consider deterrence
            as one of the 3553 factors, because it's
            important to consider preventing criminal
            behavior by the population at large and not
            just by the defendant being sentenced.

The District Court then found that "the sentence to which the

parties   agreed,   as   well   as   the     guideline   imprisonment   range

reflected in the pre-sentence report, do[es] not reflect the

seriousness of the offense, does not promote respect for the law,

does not protect the public from further crimes by Mr. Ortiz and

does not address the issues of deterrence and punishment."                At

that point, the District Court imposed the 48-month sentence.

                                      II.

            The government contends that Ortiz failed to raise his

challenge to the procedural reasonableness of the sentence below

and thus that we may review only for plain error.            But the record

shows that defense counsel had no opportunity to raise a formal

objection to the sentence prior to the sentencing hearing, as it

                                     - 5 -
was only at the sentencing hearing that the District Court varied

upwards from the guidelines range described in the pre-sentence

investigation report.   Furthermore, defense counsel's remarks both

before and after the imposition of the sentence, though cut short,

raised the same basic challenge to the reasonableness of the

sentence that Ortiz now makes on appeal.        We thus review the

sentence for abuse of discretion.    United States v. King, 741 F.3d

305, 307-08 (1st Cir. 2014).

          Ortiz argues that the "stated grounds for the imposition

of a sentence that so markedly exceeded the recommended guidelines

range were neither sufficiently particularized nor compelling to

survive the review for reasonableness." He relies on United States

v. Zapete-Garcia, where we found the district court had failed to

justify a 48-month sentence that was eight times greater than the

top of the guidelines range, but was well below the 10-year

statutory maximum.   447 F.3d 57, 59 & n.2 (1st Cir. 2006).     And

Ortiz also relies on United States v. Ofray-Campos, where we

overturned a sentence that was two-and-one-half times greater than

the top of the recommended guidelines range, but at the statutory

maximum, because it, too, had not been adequately explained.    534

F.3d 1, 42-43 (1st Cir. 2008).

          Here, as noted, Ortiz's sentence was well below the

statutory maximum but three times greater than the top of the

                                 - 6 -
advisory guidelines range.      Under Zapete-Garcia and Ofray-Campos,

therefore, the District Court was obliged to explain how Ortiz's

situation was different from the ordinary situation covered by,

and accounted for, in the guidelines calculation and thus why such

a significant variance was justified.        See United States v. Smith,

445 F.3d 1, 4 (1st Cir. 2006) ("The sentence is not a modest

variance from the guideline range," and "[t]he farther the judge's

sentence departs from the guidelines sentence . . . the more

compelling the justification based on factors in section 3553(a)

that the judge must offer in order to enable the court of appeals

to assess the reasonableness of the sentence imposed." (omission

in original) (internal quotation marks omitted)). But the District

Court failed to provide such an explanation.

             The District Court did discuss the quantity of firearms

involved and the firing of the guns by the co-defendants.                But

Ortiz rightly relies on Ofray-Campos for the proposition that

"[w]hen a factor is already included in the calculation of the

guidelines sentencing range, a judge who wishes to rely on that

same factor to impose a sentence above or below the range must

articulate     specifically    the     reasons     that   this   particular

defendant's situation is different from the ordinary situation

covered by the guidelines calculation."            534 F.3d at 43 (quoting

Zapete-Garcia,    447   F.3d   at    60).    And    the   District   Court's

                                     - 7 -
description of the facts at the sentencing hearing does not explain

why this case is so substantially outside the heartland of the

guideline enhancement for the use of firearms that a variance of

this magnitude is justified.      See Ofray-Campos, 534 F.3d at 43

("The court’s reference to [Appellant's] possession of weapons as

a triggerman lacks compelling force, in part because firearm

possession had already been considered, and accounted for, in the

two-level enhancement applied in the calculation of Appellant’s

adjusted offense level" under U.S.S.G. § 2D1.1(b)(1)).

             Rather than offering any such explanation, if one were

possible on these facts, the District Court stated that "[o]nce

again, we find ourselves in a case involving firearms in this

District."     The District Court also stated that "even though Mr.

Ortiz did not plead guilty to a weapons offense, the Court cannot

disregard the fact that he participated in an offense that involved

firearms and that those firearms were fired during the offense."

But the presence and use of firearms was accounted for in the two-

point enhancement for firearms the judge included in the guidelines

calculation, and so the reference to the mere presence or use of

the firearms cannot justify such a significant variance.        See

Ofray-Campos, 534 F.3d at 43 ("[T]hese factors [mentioned by the

District Court] were not so distinct from the firearm possession

that was incorporated into the guidelines calculation as to justify

                                - 8 -
a variance of such magnitude."); Zapete-Garcia, 447 F.3d at 60

("[T]he two-level guideline enhancement . . . applies to any

unlawful alien defendant who has previously been deported at least

once . . . . [A]lthough some amount of increase for multiple

violations might be reasonable if supported by an explanation,

here there was no explanation for an increase of such magnitude.

In any event we cannot say that one additional prior deportation

reasonably warrants an eightfold increase in punishment.").

            In further explaining the sentence, the District Court

did reference the pervasiveness of gun crime in Puerto Rico, the

need for deterrence, the need to adequately reflect the seriousness

of the offense, and the need to promote respect for the law and

protect     the      public   from   further     crimes    of   the   defendant.

Geographic considerations can be relevant at sentencing, as "the

incidence       of    particular     crimes     in   the   relevant    community

appropriately informs and contextualizes the relevant need for

deterrence."         United States v. Flores-Machicote, 706 F.3d 16, 23

(1st Cir. 2013); see also United States v. Rivera-González, 776

F.3d 45, 50-51 (1st Cir. 2015) (finding "the high incidence of

violent crime in Puerto Rico" to be an appropriate consideration

at sentencing).        Even still, "the section 3553(a) factors must be

assessed in case-specific terms," Flores-Machicote, 706 F.3d at

23,   and   a     sentencing    court's       "appraisal   of   community-based

                                       - 9 -
considerations does not relieve its obligation to ground its

sentencing determination in individual factors related to the

offender and the offense,"      Rivera-González, 776 F.3d at 50.

             Here, the District Court's reference to the section 3553

factors and contextualizing comments about gun crime in Puerto

Rico do not explain why an upward variance of this magnitude was

warranted.     Given the nature of this drug offense, and the fact

that the District Court did not explain how the enhancing conduct

involving firearms falls outside the heartland of the guideline

enhancement that had already been imposed, the District Court's

explanation    of   the   defendant's   conduct   was   not   sufficiently

compelling to explain this upward variance.         See Smith, 445 F.3d

at 6 ("We are hard-put to see any basis for finding this sentence

reasonable.     This is equally true if one turns from the facts

relied upon by the district judge to the general considerations

provided by the statute.").      "Although 'circumstances may make a

major variance reasonable,' no such circumstances are obvious from

the record in this case and no adequate explanation for such a

large variation has been provided."       Zapete-Garcia, 447 F.3d at 61

(quoting Smith, 445 F.3d at 3).

                                  III.

             Because the sentencing rationale fails to adequately

explain the basis for this large variance from the guidelines

                                 - 10 -
range, we order the sentence to be vacated, and we remand for re-

sentencing.




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