          United States Court of Appeals
                     For the First Circuit


No. 17-1383

                         UNITED STATES,

                           Appellee,

                               v.

                    HERIBERTO ORTÍZ-MERCADO,

                     Defendant, Appellant.


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

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


                             Before

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


     Angela G. Lehman on brief, for appellant.
     Julia M. Meconiates, Assistant United States Attorney, Rosa
Emilia Rodríguez-Vélez, United States Attorney, and Mariana E.
Bauzá-Almonte, Assistant United States Attorney, on brief, for
appellee.


                         March 29, 2019
             HOWARD, Chief Judge.     In this appeal, Heriberto Ortíz-

Mercado challenges his sentence following his guilty plea to one

count of possession of a firearm by a convicted felon in violation

of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).                The district court

sentenced him to seventy-one months of incarceration plus three

years of supervised release.          We affirm the sentence for the

reasons that follow.

             On the night of June 26, 2015, Puerto Rico Police

Department    officers   observed    Ortíz   crossing    the   street   while

carrying a firearm.      After exiting their unmarked vehicle, the

officers approached Ortíz and identified themselves as police

officers.     Ortíz started running and threw the firearm on the

ground, but in the process he fell to the ground and the officers

arrested him.     The officers recovered a Glock model 26 pistol,

fully loaded with a drum magazine containing forty-nine rounds of

9mm ammunition plus a round in the chamber.       The Glock was modified

with a chip to fire multiple rounds with a single pull of the

trigger.     While patting down Ortíz, the officers also found two

loaded Glock magazines: one high-capacity magazine with thirty

rounds, and one with fifteen rounds.            Ortíz was taken to the

precinct station, where he disclosed that he had been previously

convicted of a felony and was under the supervision of the U.S.

Probation Office at the time.       A grand jury subsequently indicted

Ortíz on one count of violating 18 U.S.C. § 922(g)(1), as a


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convicted felon in possession of a firearm, and the government

sought forfeiture of the firearm and ammunition under 18 U.S.C.

§ 924(d)(1).

          Ortíz ultimately decided to plead guilty without a plea

agreement, and the district court accepted the straight plea.

During the preparation of a presentence investigation report,

Ortíz explained to the probation officer that he bought the gun on

the street because he constantly feared for his life after an

incident in November 2014 during which he was shot eight times.

The shooting left him in a coma for three months.         He also

expressed remorse for having the gun and acknowledged that he knew

it was illegal for him to possess it.

          The probation officer determined that under U.S.S.G.

§2K2.1(a)(3) of the sentencing guidelines, Ortíz's base offense

level was 22, which was offset by three levels for acceptance of

responsibility under U.S.S.G. §3E1.1(a)-(b), for a total offense

level of 19.   Shortly before the sentencing hearing, Ortíz filed

a sentencing memorandum requesting a downward departure from the

guidelines.    In his memorandum and at the sentencing hearing,

Ortíz advanced a number of reasons why the court should impose a

sentence at or below the lower end of the guidelines range.    In

particular, Ortíz sought a lower sentence in light of his medical

history, which included his difficult recovery from the shooting

incident, his having had Hodgkin's lymphoma, and his need for


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ongoing professional medical care.         Overall, he argued that the

circumstances that led him to commit the offense, combined with

his medical circumstances, weighed in favor of sentencing him at

or below the low end of the guideline range.

          At the sentencing hearing, the district court approved

a   three-level   reduction    for   acceptance    of    responsibility,

resulting in a guideline range of fifty-seven to seventy-one months

incarceration, and a supervised release term of at least one but

not more than three years.       The court then considered Ortíz's

history, noting his two teenaged children, his limited education

and lack of employment, and his medical history, including the

cancer diagnosis and treatment, the 2014 shooting, and a twenty-

year history of substance abuse.      At the same time, the district

court took into account that this was Ortíz's fourth conviction,

and that it occurred while he was on supervised release.          In light

of those factors, and the nature and circumstances of the current

offense, the court determined that a sentence at the higher end of

the guideline range was sufficient but not greater than necessary,

and imposed the seventy-one month incarcerative term and three

years of supervised release.

          On   appeal,   Ortíz   asserts    procedural    error   in   the

district court's allegedly pro forma consideration of his request

for a shorter sentence.       He submits that the court failed to

adequately explain why a sentence at the low end of the guidelines


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was    not   sufficient    to   achieve   the   legitimate   objective   of

sentencing in this case.        He also argues that the length of his

prison term is substantively unreasonable.

             Ordinarily, we review a sentence for reasonableness,

tantamount to a review for abuse of discretion.          United States v.

Diaz-Rodriguez, 853 F.3d 540, 547 (1st Cir. 2017).           However, when

a defendant fails to preserve a claim for procedural error in

sentencing, we review for plain error only.              United States v.

Perretta, 804 F.3d 53, 57 (1st Cir. 2015).

             Ortíz argues that he preserved his claims of procedural

and substantive error when he filed his sentencing memorandum

urging the court to impose a sentence at the lower end of the

guideline range.      This argument flops, however, at least for the

procedural challenge, because he failed to object to the claimed

error at the sentencing hearing when the alleged error occurred,

even though he had a reasonable opportunity to do so.          See Puckett

v. United States, 556 U.S. 129, 134 (2009) ("If a litigant believes

that   an    error   has   occurred . . . during     a   federal   judicial

proceeding, he must object in order to preserve the issue."); cf.

United States v. Fernandez-Garay, 788 F.3d 1, 4 (1st Cir. 2015)

("A party's failure to spell out a claim [of error] in the district

court may be excused if he had no reasonable opportunity to do

so.") (citing Fed. R. Crim. P. 51(b)).          After considering various

factors and explaining the sentence imposed, the district court


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asked Ortíz and the government whether they had any other matters

to raise before concluding the proceedings.         To that invitation,

Ortíz's counsel expressly replied, "Nothing further."            Plain error

review thus applies to the procedural challenge because Ortíz did

not preserve that claim of error below.

             To establish plain error, Ortíz must show that three

conditions are satisfied: "First, there must be an error that has

not been intentionally relinquished or abandoned.            Second, the

error must be plain—that is to say, clear or obvious.            Third, the

error must have affected the defendant's substantial rights."

Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904 (2018)

(quoting Molina-Martinez v. United States, 136 S. Ct. 1338, 1343

(2016)).      After finding those three conditions satisfied, we

should correct the error if it "seriously affects the fairness,

integrity or public reputation of judicial proceedings."           Rosales-

Mireles, 138 S. Ct. at 1905 (quoting Molina-Martinez, 136 S. Ct.

at 1343).    An error resulting in a longer sentence than necessary

ordinarily satisfies the latter inquiry.         Id. at 1908-09, 1911.

             Ortíz argues that the district court only summarily

addressed the sentencing factors under 18 U.S.C. § 3553(a), and

failed to adequately explain the chosen sentence, as required under

§ 3553(c).      Failure   to   follow   § 3553    results   in    prejudice

warranting reversal for plain error if the defendant shows a

reasonable probability that but for an obvious error the court


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would have imposed a more favorable sentence.                See United States

v. Rodríguez, 731 F.3d 20, 25 (1st Cir. 2013).                    Ortíz's claim

falls well short of the mark, because there was no error, plain or

otherwise.

              The district court stated that it had "considered all

Section 3553(a) factors," and that statement is entitled to some

weight.      United States v. Davila-Gonzalez, 595 F.3d 42, 49 (1st

Cir. 2010).          The court expressly noted Ortíz's personal and

criminal history, the nature of the offense, the type of weapon

involved, the amount of ammunition, and his status as a releasee

at the time.        Ortíz claims that the district court did not address

his request for a downward departure under U.S.S.G. §5H1.4 based

on his medical condition and possible cancer recurrence.                 But that

is not so.        During the sentencing hearing, counsel for Ortíz urged

the court to consider the possible recurrence of cancer, noting

that Ortíz recently had undergone diagnostic studies but the

results were unknown at sentencing.             The district court concluded

that the record neither indicated a recurrence of cancer nor

reflected that his medical condition was being neglected while in

custody.

              While a sentencing court should set forth enough to

satisfy      an   appellate    court    that    it   considered    the   parties'

arguments and had a reasoned basis for the sentence imposed, it

need   not    provide    a    lengthy   explanation     of   a   straightforward


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application of the guidelines to a particular case.    Rita v. United

States, 551 U.S. 338, 356 (2007).       Moreover, we take a pragmatic

approach and recognize that the district court's reasoning may be

inferred by comparing the parties' arguments with what the court

did.   United States v. Rivera-Clemente, 813 F.3d 43, 50 (1st Cir.),

cert. denied, 136 S. Ct. 2427 (2016).       An express dissection of

each of the § 3553(a) factors is not required.       United States v.

Mangual-Rosado, 907 F.3d 107, 110 (1st Cir. 2018).

            Here, the district court addressed the § 3553(a) factors

weighing in favor of the sentence imposed.          In addition, the

district court expressly considered Ortíz's medical condition, but

found that it carried inadequate weight to tilt the scales in favor

of the shorter sentence he sought.       We cannot therefore conclude

that the district court failed to give due consideration to the

§ 3553(a) factors or to explain its reasoning in arriving at its

sentence.    As such, we find no reversible procedural error in

sentencing, much less satisfaction of the plain error standard.

            Ortíz's claim of substantive error in his sentencing

similarly fails.    He argues that the seventy-one month sentence

is unreasonable in these circumstances.         In particular, Ortíz

presses that his offense was not violent nor was it connected to

his past drug involvement.    He also argues that he possessed the

gun only because he feared for his life after he was shot multiple

times in 2014.   These factors, however, do not stand in isolation,


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and the district court's decision considered other factors -- viz.,

Ortíz's recidivism and his having committed this crime while under

federal supervision -- that it found weighed in favor of the

sentence imposed.

              Having previously recognized that an objection in the

district court may not be required to preserve a challenge to the

substantive reasonableness of a sentence, we assume, favorably to

Ortíz, that the abuse of discretion standard of review applies.

See United States v. Ruiz-Huertas, 792 F.3d 223, 228 (1st Cir.

2015).     "A sentence is substantively reasonable so long as it

rests    on   a   'plausible    sentencing      rationale'   and    embodies    a

'defensible result.'"         Id. (quoting United States v. Martin, 520

F.3d 87, 96 (1st Cir. 2008)).                Furthermore, a district court

sentence      that   falls    within   the     guideline   range    deserves    a

presumption of reasonableness.               See United States v. Llanos-

Falero, 847 F.3d 29, 36 (1st Cir.), cert. denied, 137 S. Ct. 2229

(2017) (citing Rita, 551 U.S. at 347).              In these circumstances,

Ortíz    must     present    "fairly   powerful    mitigating      reasons"   and

persuade us that the district court unreasonably balanced the pros

and cons.       Id. (citations omitted).        The mitigating reasons that

Ortíz presents here were also advanced before the district court

at sentencing, and, as described above, the record belies his claim

that the district court overlooked them or gave them short shrift




                                       - 9 -
in determining his sentence.   He thus fails to satisfy his burden

to prevail on the substantive challenge to his sentence.

          Accordingly, we affirm Ortíz's sentence.




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