          United States Court of Appeals
                      For the First Circuit

No. 18-1265

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                   JOHN MICHAEL GARCÍA-MOJICA,

                      Defendant, Appellant.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF PUERTO RICO
       [Hon. Gustavo A. Gelpí, Chief, U.S. District Judge]


                              Before

                       Howard, Chief Judge,
              Torruella and Kayatta, Circuit Judges.


     Joseph A. Niskar, Assistant Federal Public Defender, with
whom Franco L. Pérez-Redondo, Research & Writing Specialist, Eric
Alexander Vos, Federal Public Defender, and Vivianne M. Marrero-
Torres, Assistant Federal Public Defender, Supervisor, Appeals
Section, were on brief, for appellant.
     Antonio L. Pérez-Alonso, Assistant United States Attorney,
Appellate Division, with whom Thomas F. Klumper, Assistant United
States Attorney, Senior Appellate Counsel, W. Stephen Muldrow,
United States Attorney, and Mariana E. Bauzá-Almonte, Assistant
United States Attorney, Chief, Appellate Division, were on brief,
for appellee.


                          April 9, 2020
           TORRUELLA, Circuit Judge.            In this appeal, John Michael

García-Mojica     ("García")      challenges     a   100-month    sentence     of

imprisonment imposed for the convictions of possession of a firearm

by a prohibited person and illegal possession of a machine gun.

During a traffic stop, García was caught with a Glock pistol

modified to shoot automatically with its serial number removed,

two high-capacity magazines, and forty-seven rounds of ammunition.

He confessed immediately and entered a straight plea of guilty.

A   probation    officer     recommended    a    sentence    of   forty-one    to

fifty-one months for both offenses based on the U.S. Sentencing

Guidelines. At sentencing, the prosecutor challenged the probation

officer's Guidelines calculation and requested a sentence of at

least sixty-three months' imprisonment; in the alternative, the

Government      requested    an    upward   variance,       arguing   that    the

Guidelines did not contemplate the severity of García's former

state-court convictions for which he received a twenty-three year

suspended sentence.         Defense counsel countered the prosecution's

arguments and objected to the characterization of the underlying

state-court convictions.          After stating it was giving García the

benefit of the doubt and disclaiming reliance on the events beyond

what was contained in the state-law convictions, the district court

adopted the Guidelines calculation and then imposed an upward

variance of forty-nine months' imprisonment. This appeal followed.


                                      -2-
Challenging his punitive sentence, García claims that the district

court erred by failing to adequately justify its sentence, relying

on   unsubstantiated    facts,      and   ultimately,     arriving    at    a

substantively unreasonable result.        His overtures unavailing, the

sentence is affirmed.

                                     A.

            On December 13, 2016, at 1:25 a.m., the police in Sábana

Grande, Puerto Rico were alerted to a suspicious vehicle with a

flat tire.1    The officers saw the vehicle with its hazard lights

on and stopped parallel to it to ask if the occupants needed

assistance.     The driver stated he did not have a spare tire, and

the officer, smelling marijuana, told the driver to pull over.

Following   the   traffic   stop,   García,   who   was   sitting    in    the

backseat, exited the car, meanwhile dropping a thirty-round pistol

magazine.     The police arrested García and found a second magazine

in his pocket.     Additionally, the police recovered from García's

waistband a model seventeen 9mm Glock pistol (loaded with a single

round in the chamber) with an obliterated serial number.              Later

that day, García met with agents from the Bureau of Alcohol,



1  The facts are derived from the change-of-plea colloquy, the
undisputed sections of the presentence investigation report, and
the sentencing hearing transcript.        See United States v.
Vázquez-Martínez, 812 F.3d 18, 20 (1st Cir. 2016) (citing United
States v. Zapata–Vázquez, 778 F.3d 21, 22 (1st Cir. 2015)).


                                    -3-
Tobacco, Firearms and Explosives, confirmed the police officer's

account, and admitted that the seized firearm belonged to him, and

that he had purchased the gun for $1,100 with the serial number

removed and modified to shoot automatically.

          On December 21, 2016, García was charged in a two-count

indictment for violation of 18 U.S.C. § 922(g)(1) (prohibited

person in possession of a firearm) and 18 U.S.C. § 922(o) (illegal

possession of a machine gun).     Following discovery, the United

States indicated that no plea offer would be tendered.      García

proceeded to enter a straight plea of guilty for both counts.    A

U.S. Probation Officer issued a presentence investigation report

(PSR), which recommended an imprisonment term of forty-one to

fifty-one months, based on a calculation of a total offense level

of twenty-one and a criminal history category of II.       The PSR

recounted García's criminal history in Puerto Rico state court:

four convictions for possession of a firearm without a license, a

conviction for resisting public authority, and a conviction for

conspiracy in violation of Puerto Rico Penal Code Article 249 of

2004.2   The PSR described the last offense as "conspir[ing] to



2  Article 249 reads: "[w]hen two (2) or more persons conspire or
agree to commit a crime and have made specific plans regarding
their participation, the time, the location, or the acts to be
carried out, they shall be guilty of a misdemeanor. . . . If the
agreement is to commit a first- or second-degree felony, they shall
be guilty of a fourth-degree felony . . . ."        P.R. Laws Ann.

                                -4-
commit    murder,    in   the   Food   Court   of   San   Patricio   Plaza,    at

5:00 p.m. using a firearm described as a black Glock, model 23,

.40 caliber, ma[king] several shots causing the death of the human

being Emmanuel J. Zapata-Casso."             The PSR did not identify any

factors warranting a departure from the advisory guidelines or a

variance pursuant to 18 U.S.C. § 3553(a).                 Subsequently, both

prosecution    and    defense     submitted    sentencing     memoranda,      and

following delays from Hurricane María, the court sentenced García

on March 12, 2018.

            At the sentencing hearing, the United States objected to

the PSR's Guidelines calculation, proposing a total offense level

of twenty-three because García's prior conviction constituted a

crime of violence and requesting a sentence of at least sixty-three

months.    Defense counsel did not object to the PSR when prompted

by the court, but in response to the United States' objections to

the Guidelines calculations, she requested a sentence within the

PSR's proposed range.       The United States then entreated the court

to impose a variance, recounting the circumstances of García's

state-court convictions3 and explaining several additional reasons



tit. 33, § 4877.
3  The  prosecutor   stated  that   in  García's   conspiracy-to-
commit-murder case, García and another had shot several times at
an individual in broad daylight at around 5:00 p.m. in the food
court of San Patricio Plaza and killed that individual.


                                       -5-
why the court should vary upwardly from the Guidelines.                     García's

counsel    objected   to    the    Government's        characterization       of    her

client's   conviction       and    posited      that   the    Guidelines    sentence

accurately reflected García's criminal history.                    Asked why García

was not "a candidate for an upward variance" considering "all these

firearm violations," García's counsel explained that this was only

"his second brush with the law" and asked the court to consider

that the lenient sentence in state court could have been due to

additional mitigating circumstances and lack of participation.

She further explained that the current offense occurred during a

routine traffic stop, and that García would be "exposed to the

full 23 years of imprisonment [in state court] because of the

present case."

            After adopting the Guidelines sentencing range set forth

in the PSR, the court explicitly stated it would "not go beyond"

what was in the state-court convictions.               The court then announced

a 100-month term of imprisonment as "sufficient but not greater

than   necessary."      The       court   focused      its    explanation     on    the

seriousness    of     the    firearms      offenses,         the   leniency    of     a

twenty-three year suspended sentence, and the fact that García was

under state supervision when the instant offense was committed.

It cited United States v. Flores-Machicote, 706 F.3d 16 (1st Cir.

2013), as evidence of the problem firearms pose in the District of


                                          -6-
Puerto Rico.        After the pronouncement of the sentence, defense

counsel     lodged     an    objection     to        the     sentence's      procedural

reasonableness.

            This timely appeal followed.

                                         B.

            García challenges his sentence as both procedurally and

substantively unreasonable.           In reviewing his claims, we first

determine       whether   the   district      court        committed   a    "procedural

error, such as 'failing to calculate (or improperly calculating)

the   Guidelines       range,   treating       the    Guidelines       as    mandatory,

failing    to    consider    the   section 3553(a)              factors,    selecting   a

sentence based on clearly erroneous facts, or failing to adequately

explain    the    chosen     sentence—including            an    explanation    for   any

deviation       from   the    Guidelines       range.'"            United    States     v.

Gierbolini-Rivera, 900 F.3d 7, 11–12 (1st Cir. 2018) (quoting

United States v. Trinidad-Acosta, 773 F.3d 298, 309 (1st Cir.

2014)).4    "[I]f the sentence is procedurally sound, we then ask

whether the sentence is substantively reasonable."                           Id. at 12

(alteration in original) (quoting United States v. Rossignol, 780



4 The court is required to "impose a sentence [that is] sufficient,
but not greater than necessary" to accomplish the goals of
sentencing by taking into consideration the § 3553(a) factors
after correctly calculating the Guidelines sentence range. See
United States v. Rodríguez, 731 F.3d 20, 25-26 (1st Cir. 2013).


                                         -7-
F.3d   475,         477    (1st     Cir.   2015)).        A   sentence     will    be   found

"substantively reasonable so long as the sentencing court has

provided        a    'plausible        sentencing        rationale'      and      reached     a

'defensible result.'"                  Id. (quoting United States v. Martin,

520 F.3d 87, 96 (1st Cir. 2008)).

              García attacks the procedural reasonableness of his

sentence      for         two    reasons:       the    district    court    "fail[ed]        to

[adequately] justify the extent of the variance" and "premised the

extent     of       the     variance       on    unsupported       allegations."            The

Government          avers       that   García's        objection    to   the      sentence's

procedural reasonableness was too general to secure review of the

sentence under the abuse of discretion standard that García seeks

on appeal.          See id. ("We generally apply the deferential abuse of

discretion standard to preserved challenges to the procedural

reasonableness            of    a   sentence."        (citing   United     States    v.     Del

Valle-Rodríguez, 761 F.3d 171, 176 (1st Cir. 2014))).                             It is true

that "[a] general objection to the procedural reasonableness of a

sentence is not sufficient to preserve a specific challenge to any

of the sentencing court's particularized findings," and claims

first raised on appeal will be subject to the more formidable plain

error standard of review.5                  United States v. Matos-de-Jesús, 856


5 "Under that formidable standard, the appellant must show
'(1) that an error occurred (2) which was clear or obvious and
which not only (3) affected [his] substantial rights, but also

                                                 -8-
F.3d   174,    177–78     (1st   Cir.    2017)    (quoting      United      States    v.

Soto-Soto, 855 F.3d 445, 448 n.1 (1st Cir. 2017)).                García responds

that the current arguments were "at the forefront of the sentencing

hearing and the primary point of contention between the parties."

However, even assuming the more favorable standard of review,

García's contentions would still fail.                    See United States v.

Caballero-Vázquez, 896 F.3d 115, 120 (1st Cir. 2018).

              García first argues that the district court failed to

adequately articulate a basis for departing so significantly from

the    Guidelines       range    of     forty-one       to     fifty-one        months'

imprisonment to impose a 100-month sentence.                  Given such a drastic

variance,     he   contends,     the    court    was    obligated      to    offer    an

explanation commensurate to the extent of additional time.                      García

puzzles     over    how   the    court    could      eschew     reliance      on     the

Government's       representations       of    the     2011   Puerto     Rico      court

convictions by giving García "every conceivable benefit of the

doubt" and yet still impose such a punitive sentence.                           García

insists that because the Guidelines accounted for the aggravated

nature of the weapon during the pendency of a suspended sentence,




(4) seriously impaired the fairness, integrity, or public
reputation   of   judicial  proceedings.'"   United  States   v.
Matos-de-Jesús, 856 F.3d 174, 178 (1st Cir. 2017) (alteration in
original) (quoting United States v. Duarte, 246 F.3d 56, 60 (1st
Cir. 2001)).


                                         -9-
in addition to his criminal history, the court's departure from

the Guidelines required it to "articulate specifically the reasons

that this particular defendant's situation is different from the

ordinary   situation   covered      by   the    [G]uidelines    calculation."

United States v. Vázquez-Martínez, 812 F.3d 18, 24 (1st Cir. 2016)

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

2006)).

            While we agree with García that a "sentencing court's

burden to explain its sentence increases the more that it deviates

from the guideline range," Matos-de-Jesús, 856 F.3d at 179, the

court here did just that.          Reviewing the sentencing transcript,

the court's explanation of its reasoning is thorough.               While the

court was certainly troubled by the circumstances already factored

into the Guidelines calculation, it expressed additional concerns,

including that García had not learned from his lenient state-court

sentence for his prior weapons offenses6 and had committed the

instant    offense   only   five    years      into   his   twenty-three   year

suspended sentence.     The court also noted that García was carrying


6  García contests whether the twenty-three year suspended state
sentence was actually lenient. While defense counsel was free to
argue that García's twenty-three year suspended sentence was the
result of mitigating factors related to his level of participation
in the underlying offense, the court was within its discretion to
find those arguments unpersuasive and to determine that García's
recent convictions evidenced that he had not learned from his
"Herculean break" in state court.


                                     -10-
extra ammunition, which contributed to the lethalness of the

automatic weapon.7        Additionally, the court cited the problem of

illegal weapons in Puerto Rico as pertinent to the seriousness of

the present offense, nodding to Flores-Machicote, 706 F.3d at

22-23.    See also United States v. Santos–Rivera, 655 F. App'x 5,

7 (1st Cir. 2016) ("[T]he incidence of particular crimes in the

relevant community appropriately informs and contextualizes the

need for deterrence." (alteration in original) (quoting United

States v. Narváez-Soto, 773 F.3d 282, 286 (1st Cir. 2014))).                The

sentencing      court's    articulation    of   these   concerns    regarding

García's prior lenient treatment and pattern of serious weapons

offenses in his particular community can be considered as falling

outside   the    factors    explicitly    considered    by   the   Guidelines,

warranting additional deterrence and resulting in additional time.

             García's second argument -- that the district court's

variance can only be explained by its reliance on unsupported

allegations -- is intertwined with his first. According to García,

because the court failed to explain why he was distinguishable

from other similarly situated defendants and did not articulate a

compelling reason for almost doubling the recommended sentence,

the court must have relied on the prosecution's characterization


7 The Guidelines do not take into consideration                     the   extra
ammunition García was carrying when apprehended.


                                    -11-
of his underlying state law conviction.                       García contends that

consideration        of   these   facts       not      in   evidence   essentially

prejudiced     the    district        court     against     him,   overriding   any

mitigating factors offered by the defense.

             This argument, however, fails simply due to the fact

that the state-court convictions were properly before the court.

The PSR (to which García did not object) stated that García was

convicted for conspiring to commit murder leading to a death, and

his own sentencing memorandum read that García had "conspired in

the murder of a third person."            While the prosecution implored the

sentencing    court       to   read    more     into    the    "asymmetry   between

Mr. García's [state court] punishment and his alleged conduct," it

was within the court's discretion to take the convictions described

in the PSR at face value when determining the appropriate sentence

in light of the § 3553(a) factors.                  United States v. Acevedo-

López, 873 F.3d 330, 340 (1st Cir. 2017) ("[Defendant] did not

object to the summaries of these two incidents in the PSR, so the

district court could treat those facts 'as true for sentencing

purposes.'" (quoting United States v. Ocasio-Cancel, 727 F.3d 85,

91-92 (1st Cir. 2013))).               Additionally, the sentencing judge

expressly disavowed any reliance on facts beyond the convictions

when it thoroughly articulated the aforementioned reasons for the

variance.     Because the court sufficiently explained the sentence


                                         -12-
while relying on the facts properly before it, García's claims of

procedural error fail.

             Lastly,    García    incorporates     his   prior     arguments      of

procedural     error     to     challenge    the      sentence's        substantive

reasonableness        (i.e.,     length),    acknowledging       that      only    a

"plausible explanation" of the sentence is required.                    See United

States v. Clogston, 662 F.3d 588, 593 (1st Cir. 2011).                            At

sentencing, García "advocate[d] for a sentence shorter than the

one ultimately imposed."          Holguin-Hernández v. United States, 140

S. Ct. 762, 766 (2020).           Therefore, we review his objections to

the   sentence's       substantive    reasonableness       for     an    abuse    of

discretion.     Id.

             With respect to substance, "[s]entencing is much more an

art than a science.            A sentencing court is under a mandate to

consider a myriad of relevant factors, but the weighting of those

factors   is   largely     within    the    court's    informed     discretion."

Clogston, 662 F.3d at 593.         "Although an appellate court must take

into account the full extent of any variance, the dispositive

question remains whether the sentence is reasonable in light of

the totality of the circumstances."             Vázquez-Martínez, 812 F.3d

at 26 (quoting United States v. Santiago–Rivera, 744 F.3d 229, 234

(1st Cir. 2014)).        The sentencing court here stated that it was

considering both aggravating and mitigating factors, the latter


                                      -13-
including acceptance of responsibility, physical and emotional

conditions, and substance abuse, although in the end, it chose

"not   to   attach   to    certain    of     the        mitigating     factors   the

significance     that     the    appellant    th[ought]        they      deserved."

Clogston, 662 F.3d at 593.        Instead, the court found that García's

personal circumstances and the seriousness of his repeat firearm

offenses warranted an above-Guidelines sentence.                 That is not an

abuse of discretion.

            García also laments that the district court neglected to

consider "the aggregate length of his federal and state sentence

as part of its duty to consider the § 3553(a) factors."                          Upon

review, it appears instead that the district court considered this

and the possibility that García could be liable for the imposition

of the entire twenty-three year state sentence and still found the

aggravating factors outweighed the mitigating factors.                      As the

sentence    is   within    the    "universe        of     reasonable     sentencing

outcomes," United States v. Vargas-García, 794 F.3d 162, 167 (1st

Cir. 2015) (quoting Clogston, 662 F.3d at 592), we cannot find it

substantively unreasonable.

            Affirmed.




                                     -14-
