          United States Court of Appeals
                     For the First Circuit


No. 15-1247

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                     LUIS E. PEDROZA-ORENGO,

                      Defendant, Appellant.


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

         [Hon. José Antonio Fusté, U.S. District Judge]


                             Before

                   Lynch, Kayatta, and Barron,
                         Circuit Judges.


     Eleonora C. Marranzini, Research and Writing Specialist, Eric
Alexander Vos, Federal Public Defender, and Vivianne M. Marrero,
Assistant Federal Public Defender, Supervisor, Appeals Section, on
brief for appellant.
     Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, and Rosa Emilia Rodríguez-Vélez, United States
Attorney, on brief for appellee.


                          April 1, 2016
            KAYATTA,   Circuit      Judge.        After   pleading   guilty   to

unlawful firearm possession, Luis Pedroza-Orengo ("Pedroza") was

sentenced    to   a    60-month     term     of    imprisonment.       Pedroza

unsuccessfully urged the district court to reconsider, and he now

appeals     his   sentence     as     procedurally        and   substantively

unreasonable.     Finding that the district court did not abuse its

broad sentencing discretion, we affirm.

                              I.    Background1

            Around 4:20 AM on April 20, 2014, Puerto Rico Police

Department agents conducting surveillance in an area of San Juan

saw a group of people, including Pedroza, exiting a bar in the

midst of an argument.        Pedroza was carrying a firearm, which he

pointed in the direction of bystanders.               The agents called for

backup and, while they waited, they observed Pedroza slam his

firearm on the roof of a car, get inside the car, and prepare to

leave the scene.      Before Pedroza could depart, backup arrived and

the agents stopped and searched the car.              The search turned up a

Glock pistol loaded with fifteen rounds of ammunition, as well as

an additional high-capacity magazine loaded with twenty-one rounds

of ammunition.




     1 Because Pedroza pled guilty, we draw our recitation of the
facts from the change of plea colloquy and the unchallenged
portions of the Presentence Investigation Report.      See United
States v. Maguire, 752 F.3d 1, 3 (1st Cir. 2014).


                                     - 2 -
                 A grand jury charged Pedroza with one count of being a

felon       in   possession   of   a   firearm    in   violation    of   18   U.S.C.

§ 922(g)(1).2        Pedroza pled guilty pursuant to a plea agreement.

Under the agreement, the parties agreed to recommend that the

district court sentence Pedroza to the low end of the applicable

United States Sentencing Guidelines ("Guidelines") range.                     At the

same time, the agreement made clear that ultimately "the sentence

[would] be left entirely to the sound discretion of the Court."

                 The district court accepted Pedroza's guilty plea and

ordered the preparation of a Presentence Investigation Report

("PSR").          The PSR determined that Pedroza fell into Criminal

History Category III, which, taken with Pedroza's total adjusted

offense level of 17,3 corresponded to a Guidelines sentencing range

of   30–37       months'   imprisonment.         The   PSR   also   noted     that   a

psychological evaluation conducted when Pedroza was eight years

old revealed a verbal IQ of 83 and a performance IQ of 67 and

indicated "borderline intellectual functioning" accompanied by

"specific learning difficulties."




        2
       Pedroza had previously been convicted for illegal possession
of a machine gun under 18 U.S.C. § 922(o). At the time of the
instant offense, Pedroza was on supervised release for this prior
conviction.
     3   Pedroza's   base   offense   level   was  20,   see   USSG
§ 2K2.1(a)(4)(B), but this figure was reduced by three levels to
account for Pedroza's acceptance of responsibility, see id.
§ 3E1.1.


                                        - 3 -
            In preparation for sentencing, the district court also

received a 15-page neuropsychological evaluation prepared by a

licensed    clinical    neuropsychologist.           The     evaluation    placed

Pedroza's    total    IQ   at   60,    and     it   placed    Pedroza's    global

intellectual functioning in the "[m]ild intellectually disabled

range."    The report further noted Pedroza's "chronic" difficulties

with "[i]mpulsive behavior," as well as his impaired "ability to

self-reflect, learn from mistakes, develop appropriate goals, and

adapt to the demands of his environment."               The report concluded

that   these     characteristics       contributed      to    Pedroza's        "poor

judgment"    and     inadequate    "behavioral        control"    and     to     the

commission of the instant offense.             The report did not state that

Pedroza failed to comprehend that his offense conduct was wrong,

or that Pedroza was compelled in any way to engage in such conduct.

            In   keeping    with      the    plea   agreement,    both    parties

recommended that the district court impose a low-end Guidelines

sentence of 30 months. During a lengthy colloquy at the sentencing

hearing, Pedroza's counsel emphasized Pedroza's mental condition

as justification for the recommended sentence.               The district court

agreed "that [Pedroza] has an issue" but found that his mental

condition "work[ed] in a sense against society" because "[a]n

individual with that kind of situation has less acumen to make

decisions, correct decisions regarding firearms and firearms use"

and so poses "a bigger danger than an individual who has an IQ of


                                       - 4 -
125 with an illegal gun in his hand."            Thus rejecting Pedroza's

argument that the evidence of Pedroza's mental condition called

for a shorter sentence than Pedroza might otherwise receive, the

district    court    turned   to    the    factors   that   it   regarded   as

determinative.      Citing the light sentence Pedroza received for his

prior firearms conviction, the dangerousness of Pedroza's offense

conduct, and the high incidence of gun-related crime in Puerto

Rico, the district court found "no way [Pedroza was] going to walk

away . . . with a [G]uideline[s] sentence" and sentenced Pedroza

to an upwardly variant 60-month term of imprisonment and three

years of supervised release.

            Pedroza moved for reconsideration, and the district

court denied his motion.           Pedroza now appeals,4 contending that

the district court abused its discretion in imposing his sentence.

                               II.    Analysis

A.   Legal Standards

            Appellate review of a criminal sentence proceeds in two

steps.     We first "ensure that the district court committed no

significant procedural error."            Gall v. United States, 552 U.S.

38, 51 (2007).      If we find no procedural error, we "then consider




     4 Both parties agree that because Pedroza was not sentenced
in accordance with the parties' recommendations, the waiver of
appeal rights in his plea agreement does not bar this appeal. See
United States v. Fernández-Cabrera, 625 F.3d 48, 51 (1st Cir.
2010).


                                     - 5 -
the substantive reasonableness of the sentence imposed." Id. Both

inquiries      proceed    under      the    deferential   abuse   of    discretion

standard.5     Id.

B.    Procedural Reasonableness

             Pedroza makes three claims of procedural error.                    We

address each in turn.

      1.     Explanation of the Sentence

             Pedroza claims that the district court failed to justify

its   choice      to   impose   an    upwardly     variant   60-month    sentence.

"[F]ailing to adequately explain the chosen sentence--including an

explanation for any deviation from the Guidelines range"--is a

"significant procedural error."              Gall, 552 U.S. at 51.       Where, as

here, the court "decides that an outside-Guidelines sentence is

warranted, [it] must consider the extent of the deviation and

ensure     that    the   justification        is   sufficiently   compelling    to

support the degree of the variance."                 Id. at 50.    But although

"the court ordinarily should identify the main factors upon which




      5Where a defendant raises no objection below, we typically
review a sentence for plain error only. United States v. Reyes-
Rivera, 812 F.3d 79, 85 (1st Cir. 2016). Although Pedroza claims
that he objected to his sentence, the sentencing transcript reveals
no objection.     If Pedroza is referring to his motion for
reconsideration, such after-the-fact motions are insufficient to
evade plain-error review. See United States v. Almonte-Reyes, No.
13-1934, 2016 WL 669381, at *2 n.4 (1st Cir. Feb. 18, 2016).
Nonetheless, we decline in our discretion to apply a plain-error
standard here because the government has failed to request it.
See id.


                                           - 6 -
it relies, its statement need not be either lengthy or detailed."

United States v. Turbides-Leonardo, 468 F.3d 34, 40 (1st Cir.

2006).

            Here,         the    district    court    explained      its    decision   to

deviate from the Guidelines range of 30–37 months.                          The district

court described Pedroza's offense conduct in detail, emphasizing

the fact that Pedroza had "pointed [his] firearm in the direction

of bystanders," the fact that Pedroza's Glock pistol was "the most

easily convertible gun to automatic mode," and the fact that

Pedroza had acted in "[u]ncontrollable, bold fashion in front of

police officers."               Moreover, the district court highlighted the

fact that Pedroza had committed the instant offense within a year

of his release from incarceration for a prior firearms offense--

an   offense        for     which     Pedroza       had   received     an     unrealized

"opportunity" for rehabilitation through a "totally lower end

[G]uideline[s]" sentence.

            The district court also took into account the unique

proliferation of gun crimes in Puerto Rico.                          Given that "the

incidence      of     particular       crimes        in   the   relevant       community

appropriately informs and contextualizes the relevant need for

deterrence," we have recognized "the incidence and trend lines of

particular types of crime in the affected community" as relevant

considerations in sentencing.               United States v. Flores-Machicote,

706 F.3d 16, 23 (1st Cir. 2013).                Pedroza points to the district


                                            - 7 -
court's statement that Puerto Rico "[doesn't] have the typical

heartland cases . . . that justify" Guidelines sentences to suggest

that the district court relied exclusively on community-based

considerations, rather than "case-specific factors," id. at 24, to

justify its variant sentence.6                  But, as discussed above, the

sentencing colloquy included extensive discussion of the offense

conduct     and    of    Pedroza's    criminal      history.      And    even    when

discussing    community-based         considerations,       the   district      court

linked Puerto Rico's problem with gun violence to "individuals

like [Pedroza] with guns of this nature."                 (Emphases supplied.)

In   sum,   "the    claim     that    [the   district    court]    did    not    give

individualized          attention    to   the     sentencing   determination       is

unfounded."       Id.

             In a slight twist, Pedroza contends that even if the

district    court       did   rely   on    individualized      considerations      in

sentencing him, it relied on factors that had "already [been]

included in the calculation of the [G]uidelines sentencing range"

without "articulat[ing] specifically the reasons that [Pedroza's]

situation is different from the ordinary situation covered by the




      6Pedroza also contends that the district court erred by
referencing the incidence of gun crime in other countries. Even
assuming that such references were improper, however, there is no
indication that they were material to the district court's
sentencing determination; rather, the record reveals them to have
been nothing more than "unnecessary rhetorical flourishes."
Flores-Machicote, 706 F.3d at 22.


                                          - 8 -
[G]uidelines calculation."             United States v. Zapete-Garcia, 447

F.3d    57,    60   (1st    Cir.    2006).       Again,   however,    the     court

specifically addressed the particular facts of Pedroza's actual

offense that distinguished it from a generic instance of unlawful

possession:       namely, Pedroza's dangerous brandishing of a firearm

in a public location, the make of Pedroza's gun, the speed of

Pedroza's recidivism, the leniency of Pedroza's prior sentence,

and Puerto Rico's distinct problems with crime of this type.                    In

sum, the district court adequately explained the basis for its

upwardly variant sentence.

        2.    Consideration of Mitigating Evidence

              Failure to consider the sentencing factors enumerated in

18 U.S.C. § 3553(a) is an abuse of discretion.               See Gall, 552 U.S.

at 51.       Pedroza contends that the district court failed to take

into     account    his     "history    and     characteristics,"     18    U.S.C.

§ 3553(a)(1), because the court "refused to consider evidence of

[his]    mental     and    cognitive    conditions."       Pedroza    bases    this

contention on two points: that the district court declined defense

counsel's       offer       to     present       live     testimony     from      a

neuropsychologist, and that the court at one point stated that it

was "not willing to consider [Pedroza's mental condition] at the

time of sentencing."             Neither point survives our review of the

sentencing transcript as a whole.




                                        - 9 -
            First, regarding defense counsel's proffered live expert

testimony, the proffer did not occur until the day of (indeed,

after the start of) the sentencing hearing.                 Of course, had the

court    wished   to    do   so,   it   could     have   opted   to    postpone   or

reschedule sentencing to hear the expert testimony.                      But it was

not required to do so.         See United States v. Claudio, 44 F.3d 10,

16 (1st Cir. 1995) ("[T]here is no automatic right to present live

testimony at sentencing . . . .").                And we cannot say that the

district court abused its discretion in declining to grant such a

postponement, especially given the absence of any suggestion that

the expert's live testimony would contribute anything beyond what

the expert had already stated in the detailed written report that

had been provided for the district court.                See id.      In any event,

the district court accepted the gist of the expert's conclusion:

that Pedroza suffered from, in the words of the district court,

"[m]ild    mental      retardation."        The    district      court    rejected,

instead, Pedroza's argument that such a diagnosis warranted a low-

end sentence.7


     7 Pedroza also argues that the district court relied on new
information in sentencing without providing him the opportunity to
challenge it.     The only new "information" was the court's
disclosure that it had heard the defense's expert testify in other
recent cases and had been unimpressed with her conclusions. The
court relied on no facts gleaned in any other proceeding, noting
only its impression of the expert's testimony. The court pointed
to this impression to explain, in part, why it did not feel a need
to adjourn sentencing to another day in order to hear the expert
testify live. We doubt that such impressions constitute the type


                                        - 10 -
           Second, we reject for similar reasons Pedroza's literal,

out-of-context reading of the district court's remark that it was

"not willing to consider [Pedroza's mental condition] at the time

of sentencing." The transcript of the sentencing colloquy contains

pages of discussion reflecting the court's explicit consideration

of Pedroza's mental condition.           In context, and in relevant part,

the   district    court   was    simply    saying   that,   after   expressly

considering   and   discussing      the    evidence   concerning    Pedroza's

mental condition, it found that any mitigating force to that

evidence was undercut by the implications the evidence held for

Pedroza's potential for future dangerousness, and it therefore

declined to rely on the evidence as a reason to issue the low-end

sentence   that    Pedroza      urged.     In   short,   the   court    clearly

considered Pedroza's mental condition as a component of Pedroza's

"history and characteristics."           18 U.S.C. § 3553(a)(1).       And even

though Pedroza was entitled to the court's consideration of the

statutory sentencing factors, he was not entitled to any particular



of "factual information on which [a] sentence is based" that must
be disclosed prior to sentencing. United States v. Zavala-Martí,
715 F.3d 44, 55 (1st Cir. 2013) (quoting United States v. Rivera-
Rodríguez, 489 F.3d 48, 53–54 (1st Cir. 2007)).    In any event,
given that the district court ultimately voiced no disagreement
with the expert's report in this case, disagreeing instead only
with the legal import of her diagnosis, Pedroza can point to no
way in which he was prejudiced by the lack of opportunity to
challenge the district court's impressions of the expert's prior
testimony.   See Irizarry v. United States, 553 U.S. 708, 716
(2008).


                                    - 11 -
outcome from that consideration.        United States v. Carrasco-de-

Jesús, 589 F.3d 22, 29 (1st Cir. 2009); see also United States v.

Rivera-González, 776 F.3d 45, 50 (1st Cir. 2015) (district court

entitled to weigh certain factors "less heavily than [defendant]

would have liked"); United States v. Prosperi, 686 F.3d 32, 43

(1st Cir. 2012) ("[A] district court's 'choice of emphasis' when

considering relevant factors is not a ground for vacating a

sentence." (quoting United States v. Zapata, 589 F.3d 475, 488

(1st Cir. 2009))).

          Pedroza responds that even if the district court was not

required to give his mental condition mitigating force, the court

was not entitled to give it any aggravating force.          Pointing to

the district court's concern that Pedroza's mental condition left

him with diminished "acumen to make decisions, correct decisions

regarding firearms and firearms use" and rendered him "a bigger

danger than an individual who has an IQ of 125 with an illegal gun

in his hand," Pedroza contends that the district court imposed a

longer sentence than it would have selected had Pedroza not

suffered from any such condition.

          A   careful   reading    of   the   record,   however,    belies

Pedroza's description of the district court's reasoning.           We read

the sentencing transcript as demonstrating that Pedroza received

the same sentence that he would have received had he not submitted

the evidence of his mental condition.         The pertinent discussion


                                  - 12 -
commenced with Pedroza arguing that the evidence was a mitigating

factor.   The    court   rejected   that   argument,   noting   that   the

evidence, when taken together with Pedroza's offense conduct,

suggested a possibility of future dangerousness that undercut the

mitigating weight of Pedroza's diminished culpability.          This was

hardly a novel observation.     See Penry v. Lynaugh, 492 U.S. 302,

324 (1989), abrogated on other grounds by Atkins v. Virginia, 536

U.S. 304, 321 (2002); cf. U.S.S.G. § 5K2.13 (district court may

not allow downward departure on the basis of diminished capacity

where certain aspects of the offense or defendant's criminal

history indicate a threat to public safety).             The court then

explained at length the reasons for its upwardly variant sentence,

never mentioning Pedroza's mental condition among those reasons

and relying instead on Pedroza's offense conduct and criminal

history and the conditions in Puerto Rico.             In short, we are

presented here with a decision not to rely on the evidence of

Pedroza's mental condition either way, rather than a decision to

use such evidence to justify a longer sentence than would otherwise

be imposed.     We therefore have no need to express any view on

whether and how a sentencing court could rely on such evidence to

the defendant's detriment.

     3.   The Statement of Reasons Form

          A court imposing a non-Guidelines sentence must state

the reasons for the sentence "with specificity in a statement of


                                - 13 -
reasons form."    18 U.S.C. § 3553(c)(2).    Pedroza contends that the

district court committed procedural error here by failing to comply

with this statutory duty.        Although the government submits that

the district court did issue a statement of reasons form, a

completed form is not part of the record before us.             But it is

unnecessary for us to resolve this factual dispute because if there

was indeed error, it was harmless.           Even under an abuse of

discretion standard, a sentencing court's failure to submit a

statement of reasons form will not cause us to vacate the sentence

if, "[g]iven our review of the district court's oral explanation,

we believe that the district court would have imposed the same

sentence had it filed a written statement of reasons form." United

States v. Vázquez-Martínez, 812 F.3d 18, 25 (1st Cir. 2016).            In

light of the district court's comprehensive explanation of reasons

in open court, such is the case here.

C.   Substantive Reasonableness

          Finally, Pedroza argues that his 60-month sentence is

substantively    unreasonable.     "[T]he   linchpin   of   a   reasonable

sentence is a plausible sentencing rationale and a defensible

result." United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008).

Because we have already found the district court's sentencing

rationale to rest within the range of acceptable discretion, "we

limit our review to the question of whether the sentence, in light

of the totality of the circumstances, resides within the expansive


                                  - 14 -
universe of reasonable sentences."         United States v. King, 741

F.3d 305, 308 (1st Cir. 2014).

           While Pedroza's 60-month sentence was twice the length

of the 30-month sentence recommended by the parties and nearly

two-thirds longer than a high-end Guidelines sentence of 37 months,

"no   'extraordinary'   circumstances     are   required   to   justify   a

sentence outside the Guidelines range."         United States v. Nelson,

793 F.3d 202, 207 (1st Cir. 2015).         Recognizing that sentencing

represents "'a judgment call' involving an intricate array of

factors," Flores-Machicote, 706 F.3d at 21 (quoting Martin, 520

F.3d at 92), we cannot say that Pedroza's 60-month sentence for

unlawful firearm possession--while long--is "outside the universe

of reasonable sentences for an offense with a statutory maximum of

120 months," United States v. Paulino-Guzman, 807 F.3d 447, 451

(1st Cir. 2015) (citing 18 U.S.C. § 924(a)(2)).

                          III.   Conclusion

           Finding that Pedroza's upwardly variant sentence was

neither procedurally nor substantively unreasonable, we affirm

that sentence.




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