          United States Court of Appeals
                     For the First Circuit

No. 18-1152

                         UNITED STATES,

                            Appellee,

                               v.

    FABIAN VILORIA-SEPULVEDA, a/k/a Fabian Vilora-Sepúlveda,

                      Defendant, Appellant.


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

        [Hon. Juan M. Perez-Gimenez, U.S. District Judge]


                             Before

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


     Mariem J. Paez on brief for appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Francisco A. Besosa-Martínez, Assistant
United States Attorney, on brief for appellee.




                         April 16, 2019
            LYNCH, Circuit Judge.            Fabian Viloria-Sepulveda pled

guilty to illegal possession of a machine gun in violation of 18

U.S.C. § 922(o).       The district court sentenced Viloria-Sepulveda

to sixty months' imprisonment, a sentence above the applicable

guidelines sentencing range (GSR) but below the statutory maximum

of ten years.       18 U.S.C. § 924(a)(2).

            Viloria-Sepulveda challenges this sentence on procedural

and substantive grounds.           Procedurally, he contends that the

district    court    erred   in   considering     two   types   of   evidence:

(1) photographs found on the defendant's cell phone showing the

defendant and others handling drugs, drug paraphernalia, and guns,

including    military-style       assault    weapons,   and   (2) information

about the pervasiveness of guns and gun violence in Puerto Rico.

            We affirm.

                                      I.

            Puerto Rico police officers from the Drug Division of

San Juan had a member of a violent drug trafficking organization

under physical surveillance on January 30, 2017.                The officers

conducting the surveillance saw a Toyota Corolla escorting the

gang member's car. Viloria-Sepulveda was the driver of the Toyota,

as the police would later discover.

            The officers did a record check of the Toyota's license

plates.     Learning that the Toyota had been reported missing and

should be recovered, the police stopped the car.              As the officers


                                     - 2 -
neared the front driver's side window, they watched Viloria-

Sepulveda (who was sitting in the driver's seat) attempt to put a

firearm inside a bag on the front passenger seat.             The officers

ordered Viloria-Sepulveda to roll down the window, but he instead

persisted in trying to hide the firearm.             So the officers told

Viloria-Sepulveda to step out of the car, which he did, and they

placed him under arrest.

            The officers determined that the gun recovered from the

bag was a Glock 34 pistol modified to shoot automatically and

loaded with an extended magazine containing twenty-four bullets.

Viloria-Sepulveda volunteered to the officers that the weapon was

his.

            A   search    of   the   Toyota   uncovered   another     extended

magazine (with twenty-four rounds of ammunition) for the Glock, a

face mask, a drug ledger, walkie talkies, and three cell phones.

A search (to which Viloria-Sepulveda consented) of one of the cell

phones and its applications, including a messaging application

called   WhatsApp,       uncovered   multiple   photographs   of    Viloria-

Sepulveda   and    others      carrying   firearms   of   different    types,

including assault-style weapons; of drug ledgers; of a scale; and

of substances in plastic bags and in vials.

            A federal grand jury in Puerto Rico indicted Viloria-

Sepulveda on one count of illegal possession of a machine gun.

See 18 U.S.C. §§ 922(o), 924(a)(2).           Viloria-Sepulveda entered a


                                     - 3 -
straight guilty plea.        He also forfeited the firearm and the

ammunition.

          The    Probation   Office     prepared    a    presentence    report

(PSR), which found a Total Offense Level of 15 and a Criminal

History Category of I.        Based on these calculations, the PSR

calculated a GSR of eighteen to twenty-four months.

          In its sentencing memorandum, the government agreed with

the PSR's calculations but argued for an upwardly variant sentence

of forty-eight to sixty months based on the nature of the offense,

the defendant's characteristics, and the need for deterrence and

for protection of the public from future crimes by the defendant.

It stressed that Viloria-Sepulveda "was heavily armed with" a

machine gun and "two extended magazines" and argued that Viloria-

Sepulveda's     proximity    to   the     violent       gang   member   under

surveillance, as well as Viloria-Sepulveda's possession of the

walkie talkies, drug ledger, and face mask were "all evidence that

[Viloria-Sepulveda] was part of a violent criminal gang willing to

conduct its operations, and protect one another, on a public street

in broad daylight." Further, the memorandum argued that the nature

of the offense and the photographs on the defendant's cell phone

showed that he was "an individual with a penchant for high-capacity

firearms, drugs, and criminal activity."

          Finally, the government urged that the pervasiveness of

guns and gun violence in Puerto Rico justified an upward variance


                                  - 4 -
to ensure adequate deterrence and to protect the public from future

crimes by the defendant. The memorandum observed that the homicide

rate from gun violence in Puerto Rico was among the highest in the

world and stated, based on FBI statistics, that Puerto Rico's

murder rate is the second-highest in the United States.

               Viloria-Sepulveda's sentencing memorandum agreed with

the PSR's guidelines sentencing calculations but argued that an

upward variance was not warranted.              Specifically, he objected to

the government's reliance on any photographs sent to the defendant

through a group chat he was a member of on WhatsApp, saying that

it would be inappropriate to "presuppose[] that Mr. Viloria[-

Sepulveda] personally participated in taking the photographs and

video and that therefore he had access to the narcotics, firearms,

and other items depicted in said photographs."                   The memorandum

also   claimed     that    many   of    the   photographs     depicted   innocent

conduct, as they were taken during the recording of music videos

for    local    artists.      Finally,        Viloria-Sepulveda's    memorandum

highlighted that he was a father, had a record of employment, and

was a first-time offender.

               At the sentencing hearing on January 26, 2018, the

government      reiterated    its      arguments   for   an   upwardly    variant

sentence of between forty-eight and sixty months.                  The district

court "recogize[d] that Puerto Rico is a hot spot for weapons,

especially those that contain the chips which make them fully


                                        - 5 -
automatic as machine guns."          It also rejected Viloria-Sepulveda's

objections to the photos.

             The   district    court     accepted        the   PSR's    guidelines

calculations and GSR.       It noted that it had "considered all of the

[18 U.S.C. § 3553] sentencing factors," emphasizing "the need to

promote respect for the law and protect the public from further

crimes by defendant" and "the issues of deterrence and punishment."

After describing the offense, the evidence in the Toyota, and the

photographs, the district court observed that the defendant was

connected to "what the Court consider[s] to be" criminal activity.

Based on all of these considerations, the district court sentenced

Viloria-Sepulveda to sixty months' imprisonment with three years

of supervised release.        Viloria-Sepulveda's counsel then "state[d]

for the record that we object to the sentence imposed both on

procedural and substantive grounds," without further elaboration.

                                        II.

             Preserved      claims     of      procedural      and      substantive

sentencing    error   are     reviewed      under   an    abuse    of   discretion

standard.     See Gall v. United States, 552 U.S. 38, 55 (2007);

United States v. Soto-Soto, 855 F.3d 445, 448 (1st Cir. 2017).

Viloria-Sepulveda's      claim    of    substantive       error,     made   in   the

district court, is undoubtedly preserved, and is reviewed under

that standard.




                                       - 6 -
              Viloria-Sepulveda       preserved     only    one       of    his    two

procedural objections.          He argued in his sentencing memorandum and

at the hearing that the photographs were not his or that they

depicted scenes from music videos.             The second of those objections

was similar enough to the issue raised here -- that it had not

been       established     that     the     photographs     depicted          illegal

conduct -- to put the district court on fair notice, preserving

the issue.        See United States v. Ríos-Hernández, 645 F.3d 456, 462

(1st Cir. 2011).          But Viloria-Sepulveda raises his objection to

the consideration of community factors for the first time on

appeal.       See United States v. Matos-de-Jesús, 856 F.3d 174, 177

(1st       Cir.   2017)   ("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." (quoting Soto-Soto, 855 F.3d at 448 n.1)).                             That

unpreserved claim is reviewed for plain error.1                 Id.

              We find no error, let alone plain error, and no abuse of

discretion in the sentence.               Turning first to the procedural

challenges, we emphasize a few principles at the outset.




       1  "Under the plain error standard, the appellant must show
'(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.'" Soto-Soto, 855 F.3d at 448
(quoting United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).


                                       - 7 -
                                III.

          A sentencing judge, "draw[ing] upon his familiarity with

a case[ and] weigh[ing] the factors enumerated in 18 U.S.C.

§ 3553(a)," may "custom-tailor an appropriate sentence" above the

applicable GSR.    United States v. Flores-Machicote, 706 F.3d 16,

20 (1st Cir. 2013) (citing Kimbrough v. United States, 552 U.S.

85, 109 (2007)).     When a court does depart from the GSR, "its

reasons for doing so 'should typically be rooted either in the

nature and circumstances of the offense or the characteristics of

the offender.'"    Id. at 21 (quoting United States v. Martin, 520

F.3d 87, 91 (1st Cir. 2013)); see also 18 U.S.C. § 3553(a) (calling

for consideration of the "history and characteristics" of the

defendant, among other factors).

          Congress has mandated that "[n]o limitation shall be

placed on the information concerning the background, character,

and conduct of a person convicted of an offense which a court of

the United States may receive and consider for the purpose of

imposing an appropriate sentence."     18 U.S.C. § 3661.   "The intent

of Congress" in instructing this "was clearly to leave wide open

the information . . . at sentencing.      The only qualifier imposed

is that the information . . . be reliable."        United States v.

Rodriguez-Cardona, 924 F.2d 1148, 1155 (1st Cir. 1991); see also

United States v. Acevedo-Lopez, 873 F.3d 330, 340 (1st Cir. 2017);

United States v. Cintrón-Echautegui, 604 F.3d 1, 6 (1st Cir. 2010).


                               - 8 -
              Section 3553(a) in particular "invite[s] the district

court to consider, broadly," United States v. Politano, 522 F.3d

69, 74 (1st Cir. 2008), any reliable information relevant not only

to the "history and characteristics" of the defendant but also to

factors such as the "seriousness of the offense," the need "to

afford adequate deterrence to criminal conduct," and the need "to

protect the public from further crimes of the defendant," 18 U.S.C.

§ 3553(a); see also, e.g., United States v. Rivera-Berríos, 902

F.3d 20, 27 (1st Cir. 2018) (recognizing the "broad discretion"

granted by § 3553(a)). This framework not only renders appropriate

but actually encourages the sentencing court's consideration of

the evidence objected to here.

              The photographs, whose authenticity Viloria-Sepulveda

does   not    challenge,   conveyed    reliable   information     about   the

defendant relevant to his sentence for illegal possession of a

machine gun.     The district court appropriately concluded that the

fact that Viloria-Sepulveda had saved numerous photographs (some

including him) of firearms, drugs, and drug paraphernalia, or had

been   sent    such   photographs     on   WhatsApp,   signaled   his     past

participation in or propensity for illegal or violent activities

involving drugs and firearms.         See Acevedo-Lopez, 873 F.3d at 340

(no error in relying on text messages, photographs, video, and

other evidence related to past violent incident to upwardly vary

sentence).       This conclusion was further supported by similar


                                    - 9 -
evidence   found    in    Viloria-Sepulveda's   car   (in   which    he    was

escorting a known member of a violent drug gang) -- including not

only the machine gun and ammunition but also a face mask, three

cell phones, walkie talkies, and a drug ledger.              In short, the

district court certainly did not abuse its discretion in relying

on   photographs    and   possessions   indicative    of   the   defendant's

associations with violent and illegal conduct in upwardly varying

his sentence.      See Acevedo-Lopez, 873 F.3d at 340; United States

v. Quiñones-Meléndez, 791 F.3d 201, 205 (1st Cir. 2015) (no error

in basing sentence on evidence in PSR and elsewhere indicating

that the defendant was a "very dangerous individual"); United

States v. Gallardo-Ortiz, 666 F.3d 808, 815 (1st Cir. 2012)

(similar).

             In the district court, Viloria-Sepulveda argued that the

images were either not his or that they depicted innocent conduct.

But the district court was free to find otherwise, as it did.             See,

e.g., United States v. Oliveira, 907 F.3d 88, 91-92 (1st Cir. 2018)

(sentencing court's factual finding reviewed for clear error).

"[I]f he had nothing to do with it, why would somebody send him

that; just for the fun of it?," the district court astutely said.

"It's improbable[.]"       And, as the district court rightly observed,

it "stretch[es] . . . credibility" to view images containing "all

this weaponry" as innocent depictions of scenes from a music video

shoot.


                                  - 10 -
            On appeal, Viloria-Sepulveda attempts to characterize

the images as irrelevant or unreliable because "it cannot be

established by the pictures that the firearms violated any federal

statute."    Not so, and the argument misses the point in any event.

The district court did not err in finding that the pictured

weapons, some of which looked like "high-powered AK-47s," were

likely   possessed    illegally.       Further,      as   we   stated,   images

associating the defendant with drugs, drug-related items, and

weapons (whatever the status of those weapons under federal law)

could be used in upwardly varying his sentence, as they are

evidence of relevant history and characteristics.               See Gallardo-

Ortiz, 666 F.3d at 815.

            The district court also did not err in considering the

problem of gun violence in Puerto Rico and that "Puerto Rico is a

hot spot for weapons."         Community considerations such as the

prevalence of weapons and of violent crime can justify upwardly

varying a sentence for a gun possession conviction.               See Flores-

Machicote, 706 F.3d at 22-23 (no error in relying on "Puerto Rico's

escalating murder rate and other local criminal trends" in upwardly

varying a sentence for gun possession); United States v. Fuentes-

Echevarria, 856 F.3d 22, 26 (1st Cir. 2017) (no error relying on

the fact of an "arsenal [of weapons] out there in the streets" in

upwardly    varying   a   sentence    for     a   conviction   under   § 922(o)

(alteration in original)); United States v. Millán-Roman, 854 F.3d


                                     - 11 -
75, 79 (1st Cir. 2017) (similar); United States v. Lozada–Aponte,

689 F.3d 791, 793 (sentencing judge's discussion of "incidence of

crime in Puerto Rico" was a "permissible consideration[] in varying

from the guidelines"); cf. United States v. Landry, 631 F.3d 597,

607 (1st Cir. 2011) (no error in relying on the growth of identity

theft in Maine to impose high-end guidelines sentence).

          The pervasiveness of guns and the level of violence in

the local community are connected to the determinations that a

sentencing judge must make under § 3553(a)(2).      As we explained in

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

"the incidence of particular crimes in the relevant community

appropriately informs and contextualizes the relevant need for

deterrence," a factor that must be weighed under § 3553(a)(2).

Id. at 23; see also Politano, 522 F.3d at 74.       A sentencing judge

may also reasonably conclude that the need to promote respect for

the law and to protect the public from future crimes by the

defendant is greater in areas hardest hit by guns and violence,

see 18 U.S.C. § 3553(a)(2)(A)-(B) -- "and this may translate into

a stiffer sentence," Flores-Machicote, 706 F.3d at 23.

          The district court did not, as Viloria-Sepulveda argues,

overemphasize   these   community   concerns   at    the   expense    of

individual ones. See id.; see also, e.g., United States v. Rivera-

González, 776 F.3d 45, 50-51 (1st Cir. 2015).         A review of the

district court's explanation makes this abundantly clear.            The


                              - 12 -
district    court    mentioned      the   community      concerns      only    once.

Otherwise, it considered the nature of this offense, particularly

the fact that the defendant's weapon was "a machine gun, that is,

a Glock pistol, .45 caliber, that had been modified to shoot

automatically more than one shot without manual reloading, and

that was by a single function of the trigger."              The district court

also considered the images found on the defendant's phone and the

evidence in his car.        It addressed Viloria-Sepulveda's acceptance

of responsibility, that this was his first conviction, that he had

three dependents, and that he had "obtained his GED and was

performing odd jobs before his arrest."2                  The district court

confirmed that it had "considered all of the" § 3553(a) factors as

they related to the defendant.

            Finally, the explanation just recounted justified the

district court's imposition of an upwardly variant sentence of

sixty    months.     That    this     five-year   term    of    imprisonment      is

substantively      reasonable    is    also    evident   from    the    fact   that

Congress has authorized a term of imprisonment of up to ten years

for this offense.      See 18 U.S.C. §§ 922(o), 924(a)(2).               Viloria-




     2    Viloria-Sepulveda argues that the district court
afforded too little importance to potentially mitigating personal
characteristics like these. But the sentencing court has broad
discretion in weighing and balancing the § 3553(a) factors, and we
see no abuse of discretion in the weight assigned here. United
States v. Gierbolini-Rivera, 900 F.3d 7, 15 (1st Cir. 2018).


                                      - 13 -
Sepulveda's sentence falls within the "universe of reasonable

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

          Affirmed.




                              - 14 -
