            United States Court of Appeals
                       For the First Circuit


No. 14-1402

                      UNITED STATES OF AMERICA,

                              Appellee,

                                 v.

                      OSVALDO RIVERA-GONZALEZ,

                        Defendant, Appellant.


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

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


                               Before

                     Barron, Hawkins*, and Lipez,
                           Circuit Judges.


     Francisco A. Besosa-Martínez, Assistant United States
Attorney, with whom Rosa Emilia Rodriguez-Velez, United States
Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney,
were on brief for appellee.
     José Ramon Olmo-Rodríguez, with whom Olmo & Rodríguez Matias
was on brief for appellant.


                           January 8, 2016




     *Of   the Ninth Circuit, sitting by designation.
          BARRON, Circuit Judge.             The defendant in this appeal,

Osvaldo Rivera-Gonzalez ("Rivera"), brings a variety of challenges

to his federal sentence.          Because we agree with one of these

challenges, we vacate and remand.

                                       I.

          In September of 2013, the Puerto Rico Police Department

(the "PRPD"), while investigating two murders, obtained a search

warrant for the home of Rivera's grandmother.                  After discovering

marijuana, a firearm, and a few bullets, the PRPD arrested Rivera,

his brother, and his grandmother.              Twelve hours later, Rivera,

without counsel, gave a statement to the PRPD in which Rivera

confessed to the two murders and an assault.

          The PRPD turned Rivera over to federal custody.                       A

federal grand jury then returned a four-count indictment against

him.   The indictment charged Rivera with one count each of:

conspiracy to distribute a controlled substance, 21 U.S.C. §§

841(a)(1), 846, possession with intent to distribute a controlled

substance, id. § 841(a)(1), possession of a firearm by a prohibited

person, 18 U.S.C. § 922(g)(3), and aiding and abetting possession

of a firearm in furtherance of a drug crime, id. §§ 2, 924(c).

              Later, Rivera was also charged in Puerto Rico court

with crimes directly related to the murders and assault.

          Rivera    worked      out    a    plea    deal   with      the   federal

government,   by   which   he   pled       guilty   to   two    of   the   federal


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indictment's four counts: conspiracy to distribute a controlled

substance, 21 U.S.C. §§ 841(a)(1), 846, and aiding and abetting

possession of a firearm in furtherance of a drug crime, 18 U.S.C.

§§ 2, 924(c).     The plea agreement did not mention the murders or

assault.

           In   the   plea   agreement,   the   government    and    defense

counsel agreed to recommend a prison sentence within a United

States Sentencing Guidelines ("U.S.S.G.") range of 0-12 months'

imprisonment for the conspiracy conviction.1           The parties also

agreed to recommend a prison sentence of 60 months -- the statutory

minimum -- for the § 924(c) conviction.              The parties further

agreed to recommend that the latter sentence run consecutively to

the sentence for the conspiracy conviction, for a total sentence

of 60-72 months' imprisonment.

           After Rivera pled guilty, the probation office filed a

presentence     investigation   report    ("PSR").    The    PSR    detailed

Rivera's confession to the two murders and assault.          The PSR, like

the plea agreement, calculated a guidelines sentence of 60 months,

the statutory minimum, for the § 924(c) charge.               However, in

calculating the base offense level for the sentence for the

conspiracy conviction, the PSR included a cross reference to the


     1 This recommendation was premised on a base offense level of
6, with a 2-point deduction for acceptance of responsibility, for
a total offense level of 4. It varied based on the applicable
criminal history category, which was not agreed on.


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sentencing guidelines for murder convictions.2                      Based on that

cross-reference, the PSR identified Rivera's total offense level

as 40, resulting in a guidelines sentencing range of 292-365

months' imprisonment for the conspiracy conviction, although 60

months was the statutory maximum.

             Rivera objected to the PSR on the grounds that there was

insufficient    evidence       that    the    murders      were    related      to   the

conspiracy     charged   and     that     the    proof     of     the    murders     was

insufficient     to   find     that     Rivera       had   committed     them    by    a

preponderance of the evidence.                  The defendant made no other

objection to the PSR.

             At the sentencing hearing, the government, in accordance

with the plea agreement, recommended a total sentence of 60-66

months'   imprisonment       for      both    convictions.         The    government

recommended the total sentence be imposed as follows: 60 months

for the § 924(c) conviction and 0 to 6 months for the conspiracy

conviction.

             With respect to the conspiracy conviction, the District

Court agreed not to rely on the cross reference to the sentencing

guidelines     for    murder       convictions        in   calculating       Rivera's

guidelines sentencing range. The District Court imposed a sentence

of 6 months in prison for the conspiracy conviction.                     With respect


     2 In doing so, the PSR referenced U.S.S.G. § 1A1.1, although
it presumably intended to refer to U.S.S.G. §§ 2A1.1, 2D1.1(d).


                                             - 4 -
to the § 924(c) conviction, the District Court imposed a sentence

of 360 months' imprisonment.      In doing so, the District Court

explained that it was using the 18 U.S.C. § 3553(a) factors to

select a sentence within the range of statutorily permissible

sentences, which spanned from 60 months to life in prison.

            There was discussion at the sentencing hearing about

whether a prison sentence above 60 months -- and thus above the

mandatory minimum sentence under 18 U.S.C. § 924(c) -- would

constitute a departure, rather than a variance.     Defense counsel

argued that a departure would require that the defendant receive

notice of that departure prior to sentencing.     See Fed. R. Crim.

P. 32(h).    The District Court determined, however, that a prison

sentence greater than 60 months for the § 924(c) violation would

be a variance, rather than a departure, and thus would not trigger

a prior notice requirement.

            The District Court then imposed a 360-month sentence for

the § 924(c) conviction, with the 6-month prison sentence for the

conspiracy conviction to run consecutively.      Thus, the District

Court imposed a total sentence of 366 months of imprisonment.

            At sentencing, there was also discussion of whether the

federal sentence should be consecutive or concurrent with any

Puerto Rico sentence.      Thus, the District Court was aware at

sentencing that charges were pending against the defendant in

Puerto Rico court on the related crimes of murder and assault.


                                  - 5 -
The District Court stated in imposing the federal sentence that

the 360-month prison sentence for the § 924(c) conviction would

run concurrently with any sentence that the Puerto Rico court might

impose, following any convictions of Rivera on the Puerto Rico

charges then pending.         The District Court also stated that the

six-month   sentence    for     the    conspiracy      conviction      would    run

consecutively to any other sentence.

            In   response,    defense       counsel    argued   that    §    924(c)

prohibits district courts from imposing a sentence for that crime

that runs concurrently with any other sentence. The District Court

stated that § 924(c) only required the federal sentences for the

conspiracy and § 924(c) convictions to run consecutively and that

it "would be totally unfair" for the federal and Puerto Rico

sentences to run consecutively as well.

            In   stating     that     the    federal    sentence       would     run

concurrently to any Puerto Rico sentence, the District Court

explained   that   "I   don't    think      that   I   should   make    it     fully

consecutive.     I don't think I should do that."           He then said that

"BOP will not dare to calculate anything else than I have said."

And the Court added, "if the Bureau of Prisons wants to do what

they want to do, you let me know."

            Following the District Court's statement about whether

the federal and Puerto Rico sentences would run concurrently or

consecutively, defense counsel again asked the District Court how


                                         - 6 -
the federal sentence would interact with any sentence the Puerto

Rico court might impose on the charges pending in Puerto Rico

court.   The District Court clarified that if the Puerto Rico judge

sentenced Rivera to 40 years for the crimes pending against him in

Puerto Rico court, he would serve the 360-month federal prison

sentence   that    the   District   Court   imposed   for   the   §   924(c)

conviction, and then only 10 additional years of the 40-year Puerto

Rico sentence. The District Court then clarified that Rivera would

serve the six-month prison sentence for the conspiracy conviction

in addition to the forty years.

           After    sentencing,     both    defense   counsel     and    the

government filed "informative motions" with the District Court.

The parties informed the Court that, under United States v.

Gonzalez, 520 U.S. 1, 11 (1997), a § 924(c) sentence cannot be

imposed to run concurrently with any other sentence.         The District

Court then accepted defense counsel's suggestion that the written

judgment remain silent on the concurrent or consecutive issue.

The written judgment thus made no reference to how the federal

sentence would run in relation to any sentence Puerto Rico might

impose for the charges then pending against Rivera in Puerto Rico

court.

           After the District Court imposed the federal sentence,

Rivera pled guilty in Puerto Rico court and was sentenced by the




                                     - 7 -
Puerto Rico court to 104 years, 6 months, and 1 day in prison.3

The Puerto Rico judgment made no reference to the federal judgment.

Because the District Court had primary jurisdiction, Rivera will

begin his sentence in federal custody.

           Rivera   now   appeals   his   federal   sentence   on   three

grounds.   He first contends that his sentence is procedurally

unreasonable because the District Court did not comply with the

notice requirement that he contends Federal Rule of Criminal

Procedure 32(h) imposes.     He next contends that his sentence is

procedurally unreasonable because it conflicts with Gonzalez.

Rivera's final challenge is that the length of his sentence renders

it substantively unreasonable.

                                    II.

           "Generally, we apply the deferential abuse of discretion

standard in evaluating the reasonableness of a sentence." United

States v. Pantojas-Cruz, 800 F.3d 54, 58 (1st Cir. 2015) (citing

Gall v. United States, 552 U.S. 38, 51 (2007)).            The parties

disagree over whether Rivera's objections to the reasonableness of

his federal sentence are preserved, and thus the parties disagree

over what standard of review applies to Rivera's challenges.4


     3 When asked at oral argument what the practical impact of
this appeal would be, defense counsel explained that there is a
chance Rivera will not be required to serve out the entirety of
his Puerto Rico sentence.
     4  The government argues that we should treat Rivera's
challenge to the reasonableness of his sentence as waived. This


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However, even under the less deferential abuse of discretion

standard that Rivera urges us to apply, his first two challenges

fail. We thus assume that the abuse of discretion standard of

review applies in our evaluation of those challenges.

              As an initial matter, Rivera argues that the sentence

was procedurally unreasonable because the variant sentence for the

§ 924(c) conviction was actually a "departure" and thus required

prior notice under Federal Rule of Criminal Procedure 32(h).            This

argument hinges on a contention that, with respect to § 924(c),

the sentencing guidelines make any sentence over the mandatory

minimum   a    "departure"   rather   than    a   "variance."     But   that

contention is contrary to our case law, and so this challenge is

easily dismissed, as there was only a variance here.            Thus, there

was no abuse of discretion by the District Court in so concluding.

See United States v. Oquendo-Garcia, 783 F.3d 54, 56 (1st Cir.

2015) ("We will treat a sentence above a statutory mandatory

minimum under section 924(c) as an upward variance, absent some




is because Rivera's "informative motion" to the District Court did
suggest precisely the course the Court followed -- namely, to make
no reference to any Puerto Rico sentence.        However, we read
Rivera's motion to have been intended to ensure that the judgment
not state that the federal and Puerto Rico sentences must run
consecutively, presumably in order to avoid the suggestion that
the Puerto Rico court could not take account of the federal
sentence in imposing its own. We therefore reject the government's
argument that by virtue of the informative motion he filed, Rivera
waived the challenges to his federal sentence that he raises in
this appeal.


                                      - 9 -
indication in the sentencing record which persuades us that the

district    court   intended     to    or    in    fact    applied      an     upward

departure.") (internal quotation marks, brackets, and citations

omitted)); United States v. Rivera-González, 776 F.3d 45, 49 (1st

Cir. 2015) ("We hold, therefore, that since a mandatory minimum

sentence    under   section    924(c)       is    the   recommended      guideline

sentence, a reviewing court should treat any sentence above that

statutory mandatory minimum as an upward variance.").

            Rivera next argues that the sentence was procedurally

unreasonable in light of Gonzalez, as that case requires that

§ 924(c) sentences be imposed to run consecutively to, rather than

concurrently with, any other sentences, whether imposed by the

federal government or by Puerto Rico.              520 U.S. at 11.           But this

challenge   fails   as   well.        The   District      Court   did   make     oral

statements indicating that it was imposing a concurrent sentence.

But the District Court, in response to the objections set forth in

the motions filed by both the defense and the government, did not

impose a concurrent sentence in the written judgment setting forth

the sentence. The written judgment was simply silent as to whether

the sentence would run concurrently or consecutively, just as

Rivera had requested in his motion.              Thus, the sentence set forth

in the written judgment does not conflict with Gonzalez, and the

District Court committed no abuse of discretion in this regard.




                                        - 10 -
             That leaves Rivera's final argument.      Rivera casts this

challenge as if it targets the substantive reasonableness of his

federal sentence due to its length.           But at its core, Rivera

challenges the District Court's failure to provide an adequate

explanation for a sentence that varies upward from the guidelines

sentencing range to this extent.

             We thus construe this objection to be a procedural one.

See United States v. Reyes-Santiago, 804 F.3d 453, 468 n.19 (1st

Cir.   2015)    ("The   line    between   procedural   and   substantive

sentencing issues is often blurred . . . [and] 'the lack of an

adequate explanation can be characterized as either a procedural

error or a challenge to the substantive reasonableness of the

sentence.'") (quoting United States v. Crespo–Ríos, 787 F.3d 34,

37 n.3 (1st Cir. 2015) (internal quotation marks and brackets

omitted)).     And, so understood, we conclude that this challenge

has merit, even under the more demanding plain error standard that

the government urges us to apply.

             "Review for plain error entails four showings: (1) that

an error occurred (2) which was clear or obvious and which not

only (3) affected the defendant's substantial rights, but also (4)

seriously impaired the fairness, integrity or public reputation of

judicial proceedings."         Pantojas-Cruz, 800 F.3d at 58 (quoting

United States v. Medina–Villegas, 700 F.3d 580, 583 (1st Cir.

2012)).   Each prong is met here.


                                     - 11 -
             The District Court correctly calculated the guidelines

sentence for the § 924(c) conviction: 60 months.                 See Rivera-

González, 776 F.3d at 49.             The District Court then imposed a

360-month prison sentence for that conviction.                 That sentence

represented a dramatic -- 25-year -- upwards variance from the

guidelines    sentence.     The       District   Court   did   not,   however,

adequately explain the basis for that variance.

             District courts have the discretion to impose variant

sentences. United States v. Politano, 522 F.3d 69, 73 (1st Cir.

2008).   But appellate courts still must inquire into "whether the

district     court   provided     a    sufficient    explanation      for   its

variance."     Id.   That is particularly true for variant sentences

as substantial as this one.       See Crespo–Ríos, 787 F.3d at 39.          And

"[w]hen faced with an inadequate explanation, 'it is incumbent

upon us to vacate, though not necessarily to reverse, the decision

below to provide the district court an opportunity to explain its

reasoning at resentencing.'" Id. at 38 (quoting United States v.

Gilman, 478 F.3d 440, 446–47 (1st Cir. 2007)) (brackets omitted).

             In this case, the District Court stated that if the

federal and Puerto Rico sentences were to run consecutively, "it

would be totally unfair."       Yet after being apprised that the 360-

month prison sentence could not be required to run concurrently

with the Puerto Rico sentence, the District Court issued a written

sentence of that same length, that -- quite rightly -- did not


                                        - 12 -
foreclose the possibility that it might be followed by a Puerto

Rico sentence that would have to be served in full following the

completion of Rivera's federal sentence.

           In doing so, the District Court offered no explanation

as to why a sentence of 360 months' imprisonment was justified.

The explanation for a sentence may, in some cases, be inferred

from the record.    See United States v. Perazza-Mercado, 553 F.3d

65, 75 (1st Cir. 2009).      And there is no question that the

defendant's underlying criminal conduct was significant.       Yet

here, we have a sentence that varies greatly and that not only

lacks an express explanation for the variance, but also was imposed

after the District Court appeared to question the fairness of just

such a sentence.    In such circumstance, we cannot say that the

District Court has offered an adequate explanation for the sentence

imposed.

           The imposition of such an unexplained variant sentence

is obvious error.   See Perazza-Mercado, 553 F.3d at 78.   There is

also "a reasonable probability that the court might not have

imposed the [variance] if it had fulfilled its obligation to

explain the basis for the [variance]," id. (citing United States

v. Wallace, 461 F.3d 15, 44 (1st Cir. 2006) (noting that if the

sentencing court were required to supply an adequate explanation

for its actions, it "might (although by no means must) calculate

a sentence upon remand different than the precise sentence it chose


                                 - 13 -
through its initial, erroneous . . . analysis")), given that the

District Court's only comment on the possibility of the Puerto

Rico sentence running consecutively was that a federal sentence of

360 months' imprisonment would then be "unfair."       Nor can we

"endorse the summary imposition of such a significant prohibition

without impairing the 'fairness, integrity, or public reputation

of the judicial proceedings.'" Id. at 79 (quoting Wallace, 461

F.3d at 44).      We thus agree with Rivera's challenge to the

sentence.

                                III.

            For the foregoing reasons, we vacate Rivera's sentence

and remand for the District Court to explain its reasoning at

resentencing, expressing no opinion "as to what the sentence should

be."   Crespo–Ríos, 787 F.3d at 35.




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