          United States Court of Appeals
                     For the First Circuit

No. 18-1452

                         UNITED STATES,

                            Appellee,

                               v.

                     ERNESTO ORTIZ-ÁLVAREZ,

                      Defendant, Appellant.


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

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


                             Before

                 Torruella, Lynch, and Thompson,
                         Circuit Judges.


     Mariángela Tirado-Vales on brief for appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Julia M. Meconiates, Assistant United
States Attorney, on brief for appellee.


                         April 19, 2019
           LYNCH,    Circuit    Judge.     Ernesto    Ortiz-Álvarez   pled

guilty, under a plea agreement, to illegal possession of a machine

gun and to being a felon in possession of three firearms and

ammunition in violation of 18 U.S.C. § 922(o) and (g).                   The

district   court     sentenced     Ortiz-Álvarez     to   sixty   months'

imprisonment.

           Ortiz-Álvarez argues on appeal that it was error for the

district court not to decide, before imposing its sentence, whether

the guidelines sentencing range (GSR) proposed in the presentence

report (PSR) or the guidelines calculation agreed to in the plea

agreement was correct.         Instead, after reviewing the various

calculations, the district court based its sentence on the other

sentencing factors listed at 18 U.S.C. § 3553(a).          On plain error

review, we see no error.       And, in any event, we find no prejudice

in light of the district court's statements that the sentence would

have been the same under any of the proposed GSRs.          We affirm.

                                     I.

           Puerto    Rico   Police    Department     officers   conducting

surveillance at a location in Las Gardenias Public Housing Project

known for drug sales noticed a man carrying a large plastic bag

containing a green leafy substance.        Believing that the substance

was marijuana, the officers pursued the man, who ran from them and

into an apartment.




                                   - 2 -
             The police found the man in the apartment's living room

with the plastic bag, which the officers later confirmed did hold

marijuana, as well as heroin.            As the officers were arresting the

man, the defendant, Ortiz-Álvarez, opened the door of one of the

apartment's bedrooms and emerged into the living room.                     Through

the open bedroom door, the officers saw what appeared to be two

firearms on top of the bedroom's dresser.                      They asked Ortiz-

Álvarez if he had a weapons permit, and after Ortiz-Álvarez

answered no, the officers entered the bedroom.

             There, the officers recovered the two firearms seen on

the dresser: a loaded Glock .40 caliber pistol, Model 23, and a

loaded Glock .40 caliber pistol, Model 22.                   Both Glocks had been

modified to fire automatically as machine guns.                   The police also

noticed an AK-47 assault rifle leaning against the wall next to

the dresser.      A fanny pack found nearby contained ammunition,

three radio scanners, and ledgers documenting drug transactions.

             The officers arrested Ortiz-Álvarez, and a federal grand

jury charged him with possession of a machine gun and being a felon

in possession of firearms and ammunition in violation of 18 U.S.C.

§ 922(o)   and   (g).         At   the   time,   Ortiz-Álvarez      was   on   state

probation.     In 2009, Ortiz-Álvarez had been sentenced to multiple

years'   probation      for    convictions       for   use   of   intimidation   or

violence against public authority, weapon possession, and felony

attempted robbery.


                                         - 3 -
           Ortiz-Álvarez       pled    guilty    to    the    § 922(o)   and    (g)

charges under a plea agreement.               The plea agreement stipulated

that Ortiz-Álvarez's prior state felony conviction for attempted

robbery was a crime of violence under the sentencing guidelines,

see U.S.S.G. §§ 2K2.1(a)(3); 4B1.2(a), and thus stated an elevated

base offense level (BOL) of 22.           Both the plea agreement and the

PSR added to the BOL a two-level enhancement because the offense

involved three firearms, see id. § 2K2.1(b)(1), and then reduced

the BOL by three levels for timely acceptance of responsibility.

Pursuant to these calculations, the plea agreement stated an

ultimate total offense level (TOL) of 21.

           The plea agreement did not determine a criminal history

category    (CHC).             Instead,        the      "parties . . . jointly

recommend[ed] an imprisonment sentence of 46 months," stating

further that "this recommendation is reasonable under the 18 U.S.C.

§ 3553(a) sentencing factors, regardless of the Guidelines' total

offense level and criminal history category determined by the court

at   sentencing."    That      said,    the    TOL    stipulated   in    the   plea

agreement corresponded to a GSR of thirty-seven to forty-six months

if Ortiz-Álvarez's CHC were I and to a GSR of forty-one to fifty-

one months if the CHC were II.

           The   PSR's   GSR    of     thirty-three      to   forty-one    months

differed from the GSRs corresponding to the plea agreement's

stipulations.    Its stipulation that Ortiz-Álvarez's prior felony


                                       - 4 -
conviction was a crime of violence had led to the plea agreement's

TOL of 21, but the PSR did not consider this prior conviction to

be a crime of violence, and so it calculated a BOL of 20 and a TOL

of 19.    The PSR also found a CHC of II based on the prior offenses

and the fact that Ortiz-Álvarez was on probation for them when he

committed this offense.

             Ortiz-Álvarez's   sentencing    memorandum    stated      no

objections to the PSR, did not question the plea agreement's

conclusion that the prior conviction was a crime of violence, and

requested the forty-six month sentence recommended in the plea

agreement.

             At the sentencing hearing, the district court asked

defense counsel whether there was "an objection as to whether the

previous robbery was a crime of violence," and counsel answered,

"No."    The district court then discussed with the prosecutor the

PSR's and the plea agreement's differing determinations about the

prior conviction.      The prosecutor explained that the government

disagreed with the PSR's conclusion on the crime of violence issue

and added, based on the text of the plea agreement quoted above,

that "regardless of whether this Court agrees with the probation

officer's calculation under the guidelines or whether you accept

the stipulated calculation of the guidelines in the plea agreement,

the     sentencing   recommendation   from   the   Government,   and    I

understand from sister counsel, would be the same in this case."


                                 - 5 -
Ortiz-Álvarez's counsel immediately confirmed that the defendant

stood by the plea agreement.         "We are not objecting to the PSR,"

defense     counsel   stated,   "[h]owever,     we   are   recommending    to

this . . . Court      to   accept   the   parties'   recommendation   of   46

months . . ., as . . . our recommendation . . . contemplates the

applicable sentencing factors of [§ 3553(a)]."

             After reviewing the TOLs in the plea agreement and the

PSR and the CHC in the PSR, the district court stated "[b]ased on

the information that the Court has before it, the Court is not

going to determine which . . . of the guideline calculations is

correct."     Later, the district court added that it did not "have

enough information" from the PSR and the other sources "to make a

decision as to whether" the prior conviction was a crime of

violence.

             In explaining the sentence of sixty months, the district

court first considered the nature of the offense, including that

one of the weapons "was a military AK-47 assault rifle."               "[A]

modern machine gun can fire more than one thousand rounds per

minute and allows the shooter to kill dozens of people in seconds,"

the district court emphasized.            "Short of bombs, missiles and

biochemical agents, there are few weapons more dangerous than a

machine gun, and Mr. Ortiz had" more than one of them, the district

court added.     The district court next stated it had "considered

the other sentencing factors set forth in [18 U.S.C. § 3553(a)]."


                                    - 6 -
It found that neither the GSR in the PSR nor the parties' "proposed

sentence . . . reflect[ed] the seriousness of the offense," nor

adequately "promote[d] respect for the law," "protect[ed] the

public from further crimes" by the defendant, nor "address[ed] the

issues of deterrence and punishment."               The district court then

sentenced Ortiz-Álvarez to sixty months' imprisonment and three

years' supervised release.

            Ortiz-Álvarez's counsel asked the district court which

GSR it had followed, and the district court reiterated that it had

"considered both, but . . . didn't particularly follow any one of

them."     The district court stated that it would have imposed the

same     sentence    "[r]egardless       of   the   guideline"   calculations

applicable.    When the prosecutor asked whether the district court

would have done so "based on its analysis of the 3553(a) factors,"

the district court said, "[t]hat is correct."

                                      II.

            Ortiz-Álvarez argues on appeal that the district court

committed a procedural error when it chose not to definitively

determine whether the GSR proposed in the PSR or the guidelines

calculation agreed to by the parties in the plea agreement was

correct.      He    also   says   that    his   sentence   is    substantively

unreasonable.       We address these arguments in turn.




                                     - 7 -
            Because Ortiz-Álvarez did not object to his sentence in

the district court, our review is for plain error.1   United States

v. Soto-Soto, 855 F.3d 445, 448 (1st Cir. 2017); see also Fed. R.

Crim. Pro. 52(b).    Ortiz-Álvarez must show that (1) there was "an

error that has not been intentionally relinquished or abandoned,"

(2) the error is "plain -- that is to say, clear or obvious,"

(3) the error "affected the defendant's substantial rights," and

(4) the error "seriously affects the fairness, integrity or public

reputation of judicial proceedings."     Molina-Martinez v. United

States, 136 S. Ct. 1338, 1343 (2016) (internal quotation marks

omitted).

            Ortiz-Álvarez's procedural argument fails at plain error

review's first step for a number of reasons.       For one, Ortiz-

Álvarez has always agreed with the government that his prior

conviction was a crime of violence; he has raised no objections to

the stipulation in the plea agreement or to the plea's attendant

recommendation, either at the sentencing stage or on appeal.    Cf.

United States v. Olano, 507 U.S. 725, 733 (1993) (explaining the

first prong of plain error review).      For another, the district

court acknowledged that the PSR's calculations differed from those


     1    The standard of review applicable to unpreserved claims
of substantive error is "somewhat blurred," but Ortiz-Álvarez's
substantive challenge fails under either a plain error or an abuse
of discretion standard. United States v. Castrillon-Sanchez, 861
F.3d 26, 30 (1st Cir.) (quoting United States v. Ruiz-Huertas, 792
F.3d 223, 226 (1st. Cir. 2015)).


                                - 8 -
agreed   to    by   the   parties,    reviewed    all    of   the   calculations

presented, and ultimately saw no need to decide an immaterial

dispute about the GSR, concluding that a sixty-month sentence was

appropriate based on other considerations.                The district court

thus did just what the federal sentencing regime set forth at

§ 3553(a) requires: "consider Guidelines ranges, see 18 U.S.C.

§ 3553(a)(4), but . . . tailor the sentence in light of other

statutory     concerns . . . ,       see   § 3553(a)."        United   States   v.

Booker, 543 U.S. 220, 245 (2005).              Given those features of the

sentencing, there was no "error that has not been intentionally

relinquished or abandoned."          Molina-Martinez, 136 S. Ct. at 1343.

              Ortiz-Álvarez cites Gall v. United States, 552 U.S. 38

(2007), but that case does not advance his argument.                    Dicta in

Gall likened "failing to calculate . . . the Guidelines range" to

the "significant procedural error" of "improperly calculating[]

the Guidelines range."          Gall, 552 U.S. at 51.               But, Gall's

"failing to calculate" language is not a reference to what the

district court did here but rather is a reference to failing to

"begin the[] [sentencing] analysis with the Guidelines and [to]

remain cognizant of them throughout the sentencing process," as

§ 3553(a) requires.        Id. at 50 n.6.        And, as we have said, in

sentencing     Ortiz-Álvarez,    the       district   court    operated   within

§ 3553(a)'s framework when it discussed the two possible TOLs and

attendant guidelines ranges but ultimately determined that the


                                      - 9 -
other § 3553(a) factors compelled a sentence of sixty months,

regardless of the applicable GSR.           See id. at 49-50 (explaining

that a sentencing judge must discuss the guidelines and then

determine whether the § 3553(a) factors "support the sentence

requested by a party").

           Ortiz-Álvarez is also not helped by cases finding plain,

procedural error in situations where a district court has made an

improper   guidelines   calculation.        In   those   cases,       defendants

attempted to show, and ultimately did show, that the district court

had "mistakenly deemed applicable an incorrect, higher Guidelines

range."    Molina-Martinez, 136 S. Ct. at 1346; Rosales-Mireles v.

United States, 138 S. Ct. 1897, 1905-06 (2018);2 United States v.

Taylor, 848 F.3d 476, 498-99 (1st Cir. 2017); United States v.

Hudson, 823 F.3d 11, 19 (1st Cir. 2016).           In contrast, here, not

only did the district court never conclusively adopt the plea

agreement's higher TOL, but also Ortiz-Álvarez has never argued

that the plea agreement's higher TOL was erroneous.

           Ortiz-Álvarez's embrace of the plea agreement, with its

stipulation   that   his   prior   state    conviction    was     a    crime   of

violence, also distinguishes this case from United States v.

Tavares, 705 F.3d 4 (1st Cir. 2013).        And, in any event, our result



     2    Both the government's and the defendant's briefing fail
to call our attention to these and other pertinent Supreme Court
cases.


                                   - 10 -
here is consistent with Tavares.        There, the sentencing court had

not "calculate[d] definitively the operative guidelines sentencing

range," and we held this was error, albeit harmless error, and

affirmed the sentence.       Id. at 25.      As Tavares made clear, in

failing to calculate Tavares' GSR, the district court had left

unresolved a significant disagreement between Tavares and the

government about the defendant's criminal history category.            Id.

That specific procedural "lapse" did not arise or occur here.          Id.

            Here, there was no disagreement between the parties for

the district court to resolve.          It was the probation office, in

the PSR, not the defendant or the government, that offered an

alternative, lower TOL calculation; and neither Ortiz-Álvarez's

sentencing    memorandum    nor   his    counsel's   statements   at   the

sentencing hearing nor his brief on appeal defend the PSR's

calculation or take issue with the plea agreement's stipulation

that the prior conviction for Puerto Rico attempted robbery was a

crime of violence.       (This absence of disagreement between the

parties, we note, surely contributed to the district court's

statement    that   it   lacked   sufficient   information   to   draw   a

conclusion on the crime of violence question.)            No procedural

sentencing rule required the district court to issue what would

have been, in essence, an advisory opinion deciding whether Puerto

Rico attempted robbery is a crime of violence.         Cf. United States

v. Hammes, 3 F.3d 1081, 1083 (7th Cir. 1993) (citing United States


                                  - 11 -
v. Fruehauf, 365 U.S. 146, 157 (1961)) (declining to resolve a

legal question under the guidelines where defendant agreed to

sentencing procedure).

           Ortiz-Álvarez's     argument   that    the   district    court's

choice not to conclusively adopt a GSR fails at plain error

review's first step.      It also fails for another, independent

reason, at plain error review's third prong: the district court's

choice did not affect Ortiz-Álvarez's substantial rights.                 An

error affects substantial rights only if there is a "'reasonable

probability that, but for the error,' the outcome of the proceeding

would have been different."      Molina-Martinez, 136 S. Ct. at 1343

(quoting United States v. Dominguez Benitez, 542 U.S. 74, 76

(2004)).    And   Ortiz-Álvarez's    sentence     would   not   have     been

different had the district court settled on a GSR.

           The district court stated that it would have imposed the

same sentence "based on its analysis of the § 3553(a) factors,"

regardless of the applicable GSR.          On the record here, that

statement demonstrates "that the district court thought that the

sentence it chose was appropriate irrespective of the [applicable]

Guidelines range" and that adoption of a particular GSR would not

have changed Ortiz-Álvarez's sentence.           Molina-Martinez, 136 S.

Ct. at 1346; see also Taylor, 848 F.3d at 498 (explaining that a

claim of prejudice is defeated by "a clear statement by the

[sentencing]   court"   that   "diminish[es]     the    potential   of    the


                                 - 12 -
[Guideline Sentencing Range] to influence the sentence actually

imposed")    (first       and   third    alterations      in    original)   (quoting

Hudson, 823 F.3d at 19).           There was thus no prejudice.          See Molina-

Martinez, 136 S. Ct. at 1346-47; see also Tavares, 705 F.3d at 25;

United States v. Marsh, 561 F.3d 81, 86 (1st Cir. 2009) (affirming

sentence based on similar statements by the sentencing court).

            The district court's explanation of the reasons for the

sixty-month sentence further counters Ortiz-Álvarez's claim of

prejudice by "mak[ing] it clear that the judge based the sentence

he . . . selected on factors independent of the Guidelines" range.

Molina-Martinez, 136 S. Ct. at 1347; see also id. at 1346; Taylor,

848 F.3d at 498 (recognizing that a claim of prejudice can be

defeated by a district court's statements "that its sentence would

nevertheless be the same under an alternative analysis").                       The

district court did discuss the guidelines calculations in the plea

agreement    and    the    PSR,    but       it   ultimately,   and   unmistakably,

justified the sentence imposed based on the nature of the offense

and the "other sentencing factors" at § 3553(a), not on those

guidelines calculations.           See United States v. Henderson, 911 F.3d

32,   36   (1st    Cir.    2018)    (affirming       sentence    where   sentencing

rationale    was    independent         of    possibly   erroneous    GSR).    That

independent justification shows that the district court, while

cognizant of the dueling guidelines calculations, "intended to

untether" its sentence from the guidelines calculations presented


                                         - 13 -
to him (and any errors in them), refuting Ortiz-Álvarez's claim of

prejudice.3    Hudson, 823 F.3d at 19.

            The district court's rationale was also plausible, and

it led to a defensible sentence, and so the sentence is not

substantively flawed, as Ortiz-Álvarez argues.        See, e.g., United

States v. Contreras-Delgado, 913 F.3d 232, 243 (1st Cir. 2019)

("The hallmarks of a substantively reasonable sentence are a

plausible sentencing rationale and a defensible result." (internal

quotation     marks   omitted)).    Given   that   Ortiz-Álvarez   was   a

convicted felon on probation who possessed two pistols modified to

fire automatically and an AK-47 near drugs, the five-year sentence

he received fell within the "universe of reasonable sentences."

United States v. Rivera-González, 776 F.3d 45, 52 (1st Cir. 2015).

            Affirmed.




     3    The district court's statements and its justification of
the sentence on factors other than the guidelines calculations
distinguish this case from those finding prejudice in situations
where the district court adopted an erroneous guidelines
calculation. See generally Molina-Martinez, 136 S. Ct. at 1345-
46, 1347-48; see also Hudson, 823 F.3d at 19 (prejudice where the
sentencing court stated "I see no basis to vary from the [GSR],"
where that GSR was flawed); Taylor, 848 F.3d at 498-99 (prejudice
where the sentencing judge calculated sentence from an erroneous
criminal history score).


                                   - 14 -
