            United States Court of Appeals
                       For the First Circuit

No. 14-1929

                      UNITED STATES OF AMERICA,

                              Appellee,

                                 v.

                      HAINZE ELÍAS DÍAZ-ARROYO,

                        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, Selya and Dyk,*
                           Circuit Judges.


     Steven A. Feldman and Feldman and Feldman on brief for
appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Carmen M. Márquez-Marín, Assistant United States
Attorney, on brief for appellee.


                           August 12, 2015




     *   Of the Federal Circuit, sitting by designation.
             SELYA,   Circuit   Judge.       In    this   sentencing   appeal,

defendant-appellant Hainze Elías Díaz-Arroyo complains that his

48-month     sentence   is   substantively        unreasonable   and   that   a

condition of supervised release fails to make clear that he is not

prohibited from using the internet.           After careful consideration,

we affirm the sentence itself but remand for the limited purpose

of correcting the judgment to clarify the challenged supervised

release condition.

                                       I.

                                   BACKGROUND

             As this appeal follows a guilty plea, we draw the facts

from   the    plea    agreement,     the    change-of-plea    colloquy,   the

presentence investigation report (PSI Report), and the transcript

of the disposition hearing.        See United States v. Rivera-González,

776 F.3d 45, 47 (1st Cir. 2015); United States v. Dávila-González,

595 F.3d 42, 45 (1st Cir. 2010).             In January of 2014, a Puerto

Rico police officer spied the defendant pulling a firearm from his

waistband in the vicinity of a public housing project.                    The

defendant attempted to flee on foot (losing a black wig in the

process) but was eventually apprehended.            He admitted that he had

been wearing the wig to disguise himself as he knew there was an

outstanding arrest warrant against him on homicide charges. During

a search incident to his arrest, the police found a container of

marijuana, a stolen 40-caliber Glock pistol loaded with 13 rounds


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of ammunition, and a magazine loaded with 12 rounds of 40-caliber

ammunition.

             In due course, a federal grand jury sitting in the

District    of    Puerto     Rico   returned       an    indictment     charging     the

defendant with being a felon in possession of a firearm.                       See 18

U.S.C. §§ 922(g)(1), 924(a)(2).               This charge carries a maximum

prison sentence of 10 years.             See id. § 924(a)(2).

             After some preliminary skirmishing (not relevant here),

the defendant entered into a non-binding plea agreement with the

government (the Agreement).             See Fed. R. Crim. P. 11(c)(1)(B).             In

the Agreement, the defendant agreed to request a sentence no lower

than the bottom of the applicable guideline sentencing range (GSR)

while the government agreed to recommend a sentence no higher than

the top of the range.           Withal, the Agreement reached no consensus

about the defendant's criminal history category (CHC), although it

did forecast a possible GSR based on a CHC of II.

             After the district court accepted the defendant's guilty

plea, it directed the preparation of the PSI Report.                          The PSI

Report adumbrated a series of guideline calculations.                        Starting

with   a   base    offense      level   of   14,    see       USSG   §2K2.1(a)(6),    it

suggested a two-level upward adjustment because the firearm was

stolen,    see    id.   §2K2.1(b)(4)(A),           and    a    three-level   downward

adjustment       for   timely    acceptance        of    responsibility,     see     id.

§3E1.1(a), (b), yielding a total offense level of 13.                         The PSI


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Report    then    proposed    a   CHC   of   II   because    the   defendant   had

previously been convicted of three counts of possession of a

firearm without a license, and he was on probation for those crimes

when   he   committed      the    instant    offense.       Cumulatively,   these

computations produced a recommended GSR of 15 to 21 months.

             The PSI Report went on to note that the defendant's

criminal past included two separate incidents for which he was not

convicted (and, thus, for which no criminal history points were

assessed). In 2012, he was arrested for possessing false documents

and pointing a firearm at a law enforcement officer. These charges

were eventually dismissed due to a reported lack of probable cause.

In 2014, the defendant was again arrested; this time he was charged

with causing the death of two men and attempting to murder a third

with a firearm.       These charges were also dismissed, but the PSI

Report was silent as to the reason for the dismissal.

             At the disposition hearing, the district court — without

objection — adopted the guideline calculations limned in the PSI

Report.     Defense counsel requested a bottom-of-the-range sentence

(15    months).      The     prosecutor      recommended    a   top-of-the-range

sentence (21 months).         As part of her statement to the court, the

prosecutor explained that the 2014 murder and attempted murder

charges were dropped only after the sole surviving witness to the

incident (a minor who was able positively to identify the defendant

as the shooter) was threatened and fled the jurisdiction.                Defense


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counsel did not strongly deny the prosecutor's account, stating

that the defendant maintained his innocence with respect to those

charges, and adding, ambiguously, that the defendant had "no

relation to that."         Defense counsel went on to say that she

understood that the charges had been dropped because the witness

had been in witness protection and did not appear to testify.

             The district court noted that it had considered all of

the factors enumerated in 18 U.S.C. § 3553(a).                    It specifically

acknowledged    the    Agreement,    the     defendant's         criminal     history

(including    the   dismissed      charges),       his   age,     his    family      and

employment status, his history of drug abuse, and the circumstances

surrounding the offense of conviction.               The court then mentioned

the high incidence of violent crime in Puerto Rico1 and decried

the fact that "[t]oo many young men on this island are carrying

dangerous weapons without the proper training to use them and

without the finances to purchase them."                  Stressing, inter alia,

the   defendant's      prior    weapons    convictions          and     the   dropped

murder/attempted       murder   charges,     the    court   concluded         that   an

upwardly     variant    sentence    was    necessary        to    "reflect[]         the

seriousness of the offense, promote[] respect for the law, [and]

protect[] the public from further crimes by [the defendant]."                        The

court then sentenced the defendant to serve 48 months in prison


      1Among other things, the court observed that the crime rate
in Puerto Rico "is about quadruple the national rate."


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(consecutive     to   any   sentence       imposed     in   the   then-pending

Commonwealth probation revocation proceedings), followed by a

three-year term of supervised release.               No objections were made

either to the sentence or to the supervised release conditions.

          In setting forth the conditions of supervised release,

the court required the defendant, inter alia, to comply with

electronic monitoring strictures.          In so doing, the court stated:

"[i]n addition to any telephone or cell phone that he may have,

[the defendant] shall maintain a telephone at his residence without

a modem, an answering machine or a cordless feature during the

term of electronic monitoring."

          This timely appeal ensued.

                                     II.

                                ANALYSIS

          On appeal, the defendant raises three issues. We discuss

those issues sequentially.

                                     A.

          To begin, the defendant argues that the waiver-of-appeal

clause contained in the Agreement does not pretermit his appeal.

That argument, however, sets up a straw man.

          In so many words, the waiver-of-appeal clause hinges the

defendant's waiver on the subsequent imposition of a sentence "in

accordance with the terms and conditions set forth in the Sentence

Recommendation    provisions   of    [the     Agreement]."        Because   the


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sentence imposed by the district court was beyond the bounds of

the Agreement's Sentence Recommendation provisions, the waiver-

of-appeal clause does not apply.             See, e.g., Rivera-González, 776

F.3d at 49.        And the government, to its credit, has conceded the

point all along.

                                        B.

             The    centerpiece   of    this    appeal    is   the   defendant's

contention that the sentence imposed by the district court is

substantively unreasonable.            Since the defendant did not object

below, the standard of review is open to question.                      We have

recently explained that most courts have held that an objection in

the district court is not necessary to preserve a claim that the

length of a sentence is substantively unreasonable.                  See United

States v. Vargas-García, ___ F.3d ___, ___ (1st Cir. 2015) [No.

14-1335, slip op. at 8]; United States v. Ruiz-Huertas, ___ F.3d

___,   ___   (1st     Cir.   2015)     [No.    14-1038,   slip   op.   at   10].

Nevertheless, "a pair of First Circuit cases have expressed a

contrary view (albeit without any analysis of the issue)." Vargas-

García, ___ F.3d at ___ [slip op. at 8] (citing Ruiz-Huertas, ___

F.3d at ___ n.4 [slip op. at 10 n.4]).           Here, though, we can follow

the same path that we took in both Vargas-García and Ruiz-Huertas

and leave the issue for another day.             Thus, we assume, favorably

to the defendant, that the abuse of discretion rubric applies.




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          In   appraising   the   substantive   reasonableness   of   a

sentence, we first ask whether the district court has offered a

plausible rationale for the sentence and then ask whether the

sentence embodies a defensible result.          See United States v.

Flores-Machicote, 706 F.3d 16, 25 (1st Cir. 2013); United States

v. Martin, 520 F.3d 87, 96 (1st Cir. 2008).     Variant sentences are

subject to this two-part inquiry.     See United States v. Santiago-

Rivera, 744 F.3d 229, 234 (1st Cir. 2014).      Throughout, we remain

mindful that where (as here) a properly calculated GSR is in place,

"sentencing becomes a judgment call, and a variant sentence may be

constructed based on a complex of factors whose interplay and

precise weight cannot even be precisely described."      Martin, 520

F.3d at 92 (internal quotation marks omitted).

          In the case at hand, the defendant contests both parts

of the two-part inquiry.     He begins by denigrating the district

court's rationale because (in his view) the court premised its

sentencing determination on two factors "beyond his control,"

namely, the crime rate in Puerto Rico and the charges against him

that were later dismissed.    Although the defendant concedes that

each of these factors is a permissible consideration at sentencing,

he submits that the court below erred in relying on them in

combination.

          We discern no abuse of the sentencing court's broad

discretion.    As we repeatedly have explained, "[d]eterrence is


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widely    recognized       as   an   important    factor    in     the     sentencing

calculus."      Flores-Machicote, 706 F.3d at 23; accord United States

v. Romero-Galindez, 782 F.3d 63, 73 (1st Cir. 2015).                     To this end,

a sentencing court may consider the pervasiveness of similar crimes

in the community in formulating its sentence.                   See, e.g., United

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

States v. Politano, 522 F.3d 69, 74 (1st Cir. 2008).                     So, too, the

fact that a defendant's CHC substantially underrepresents the

gravity   of     his   prior    criminal    history      because      of   previously

dismissed charges may shed light upon the need for specific

deterrence.         See,    e.g.,     Flores-Machicote,         706     F.3d      at   21

(explaining that "[a] record of past arrests or dismissed charges

may indicate a pattern of unlawful behavior even in the absence of

any   convictions"      (internal      quotation    marks       omitted));        United

States    v.    Lozada-Aponte,       689   F.3d   791,    792    (1st      Cir.    2012)

(similar); United States v. Gallardo-Ortiz, 666 F.3d 808, 814-15

(1st Cir. 2012) (similar); cf. USSG §4A1.3(a)(2)(E) (authorizing

upward departures based on reliable information that defendant

committed "[p]rior similar adult criminal conduct not resulting in

a criminal conviction").             We know of no reason why these two

sentencing considerations, each of which is proper, cannot be used

synergistically in fashioning a sentencing rationale.

               We add, moreover, that the district court's sentencing

rationale was altogether plausible. The court gave several reasons


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for imposing a sentence above the GSR, including the need for

deterrence in view of the defendant's demonstrated proclivity for

committing firearms offenses (as shown in part by his many prior

weapons-related brushes with the law).2            The court then voiced its

concern   that    no   sentence    within    the   GSR   would   appropriately

"address the issues of deterrence and punishment."                  Given the

amalgam   of     convicted   and    dismissed      firearms-related   charges

reflected in the record — which show "a pattern of unlawful

behavior even in the absence of [corresponding] convictions,"

Lozada-Aponte, 689 F.3d at 792 (quoting United States v. Zapete-

Garcia, 447 F.3d 57, 61 (1st Cir. 2006)) — we find no lack of

plausibility in the district court's sentencing rationale.3




     2 In this regard, the court emphasized the need for the
sentence imposed both to deter the defendant and to serve the
purpose of general deterrence in the population at large.

     3 We note that the sentencing court was entitled to take into
account the prosecutor's representations at the disposition
hearing regarding the circumstances surrounding the 2014
murder/attempted murder charges to shed light on the reason for
the dismissal of those charges. The prosecutor stated that the
victim of the attempted murder (who was the sole eyewitness) fled
the jurisdiction because he "was threatened." Defense counsel did
not   directly   challenge  the   prosecutor's   account  of   the
circumstances surrounding the dismissal of the charges.         At
sentencing, a court is not bound by the rules of evidence but,
rather, may take into account any information that has sufficient
indicia of reliability. See United States v. Tardiff, 969 F.2d
1283, 1287 (1st Cir. 1992); USSG §6A1.3(a).        For sentencing
purposes, a prosecutor's statement, not adequately challenged by
defense counsel who has a full opportunity to respond, may
constitute reliable information.


                                    - 10 -
             Nor do we find that the sentence embodies an indefensible

result.   We recognize, of course, that the district court's duty

is to impose a sentence that is "sufficient, but not greater than

necessary" to accomplish the manifold goals of sentencing.                      18

U.S.C. § 3553(a).         Still, "[i]n most cases, there is not a single

appropriate     sentence       but,   rather,   a   universe     of    reasonable

sentences."        Rivera-González, 776 F.3d at 52.            We conclude that

the upwardly variant sentence here falls near the outer margin of,

but within, that universe.

             To be sure, the sentence is severe — but not unreasonably

so.   The offense of conviction was serious; it involved a stolen

firearm; and it was aggravated both by the defendant's possession

of an additional (loaded) magazine and by his flight.                   Moreover,

the defendant committed the offense while on probation for an

earlier weapons charge.          When the facts of this case are viewed

against the backdrop of the defendant's checkered criminal history

and the community's burgeoning problems with violent crime linked

to the illegal possession and use of firearms, we cannot say that

the   sentence      was    outside    the    wide   universe    of     permissible

sentences.

                                        C.

             The    district    court   imposed,     inter     alia,    a   special

condition of supervised release designed to ensure the efficacy of

electronic monitoring: it required that the defendant maintain a


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"clean" telephone line, sans modem, in his home.           The defendant's

final claim of error posits that this condition, as phrased in the

written judgment, fails to make clear that the condition was not

intended to prohibit him from accessing the internet.4

           We start our appraisal of this claim by noting that such

a supervised release condition normally should not be construed to

bar   internet   access.      In     reviewing   a   substantially   similar

supervised release condition in an earlier case, we explained that

such a condition "affirmatively commands one particular action

(i.e., the maintenance of a certain type of phone line), but does

not expressly prohibit any other, including that of accessing the

internet from home."   United States v. Rivera-López, 736 F.3d 633,

634 n.1 (1st Cir. 2013).       Here, however, there is a problem with

the wording of the written supervised release condition.

           In Rivera-López, we cautioned district courts to take

care in the use of language so as to make clear that the condition

of maintaining a telephone line sans modem is not a prohibition on

all internet usage.        See id.     The court below complied in part

with this admonition: when it announced the condition from the

bench at the disposition hearing, it began with the qualifying

phrase, "[i]n addition to any telephone or cell phone that he may


      4The condition in the written judgment provided: "[The
defendant] shall maintain a telephone at his place of residence
without any special features, modems, answering machines, or
cordless telephones during the term of electronic monitoring."


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have. . . ." But in the written judgment, this qualifying language

was   inexplicably   omitted,   and      the   written   condition   was

substantially similar to, if not less clear than, the condition

that we found suspect in Rivera-López.         The result is that the

written judgment contains the very ambiguity against which the

Rivera-López court warned.

          This oversight is easily corrected.            We direct the

district court, on remand, to correct the judgment so that the

language of the challenged supervised release condition makes

clear that there is no prohibition on the defendant's access to

the internet.

                                 III.

                             CONCLUSION

          We need go no further. For the reasons elucidated above,

we affirm the sentence but remand the case with directions to

correct the challenged supervised release condition.



So ordered.




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