          United States Court of Appeals
                     For the First Circuit


No. 13-1885

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

              FRANCISCO J. VÉLEZ-SOTO, a/k/a Fresh,

                      Defendant, Appellant.




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

          [Hon. Gustavo A. Gelpí, U.S. District Judge]




                             Before

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


     Jean C. LaRocque and Shea and LaRocque, LLP on brief for
appellant.
     Rosa Emilia Rodríguez-Velez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and John A. Matthews II, Assistant United States
Attorney, on brief for appellee.



                        October 14, 2015
           LIPEZ,   Circuit   Judge.    This   is   an   appeal   from   a

sentence following Francisco J. Vélez-Soto's guilty plea in a

multi-defendant drug conspiracy case.          While on bail pending

sentencing in his federal case, appellant pled guilty to three

state law convictions: second degree murder and two weapons law

violations.   Appellant contends that the district court's decision

to impose a 280-month federal sentence to run concurrently with a

his state sentence was procedurally unsound and substantively

unreasonable.   Finding the sentence proper in all respects, we

affirm.

                                   I.

A. Factual Background

           Given that this appeal follows a guilty plea, the facts

are derived from the presentence investigation report (PSR), the

change of plea colloquy, and the transcript of the sentencing

hearing.   See United States v. Whitlow, 714 F.3d 41, 42 (1st Cir.

2013).

           Beginning in 2000, and continuing until the return of the

federal indictment, Vélez-Soto participated in a conspiracy to

distribute controlled substances in the Candelaria, El Carmen, and

Kennedy Public Housing Projects in Puerto Rico.      Vélez-Soto served

as a manager and enforcer for the drug trafficking organization.

As a manager, he distributed narcotics to sellers for subsequent

sale and distribution and was responsible for collecting the

                                  -2-
proceeds from drug sales and paying the street sellers.                 As an

enforcer, he carried and possessed firearms in furtherance of the

drug trafficking activities.

B. Procedural Background

          On July 7, 2010, a Puerto Rico federal grand jury

returned a six-count indictment charging Vélez-Soto and 102 co-

conspirators with conspiracy to distribute controlled substances in

violation of 21 U.S.C. §§ 841(a)(1), 846, and 860 (Count One),

among other offenses.        Vélez-Soto entered a guilty plea to Count

One pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C).

The plea agreement recommended as appropriate a prison term of 108

to 120 months.

          On May 16, 2011, pending his federal sentencing, Vélez-

Soto was charged in Commonwealth court with murder and weapons

violations.    He pled guilty to second degree murder and two counts

of weapons law violations.       On February 19, 2013, he was sentenced

to 204 months' imprisonment: fifteen years and one day on the

murder charge, to be served consecutively with one-year terms for

each weapons violation.

          On    March   4,    2013,   Vélez-Soto   appeared   for   a    pre-

sentencing hearing on the federal drug conspiracy charge.                 The

district court rejected Vélez-Soto's plea agreement, noting that

Vélez-Soto breached it when he committed second degree murder while

out on bail pending his federal sentencing.        The court gave Vélez-


                                      -3-
Soto until March 20, 2013 to withdraw his guilty plea, which he

declined to do.

             The district court sentenced Vélez-Soto on June 18, 2013.

Based on a total offense level of 31 and a criminal history

category of III, the district court noted the guideline range of

135 to 168 months.1     The government requested a sentence "on the

lower end" of the 108- to 120-month range specified in the plea

agreement.     Defense counsel requested a sentence of 108 months to

run concurrently with his state sentence, and he asked that the

court direct that the sentence be served in a federal facility.

The district court sentenced Vélez-Soto to 280 months imprisonment,

to be served concurrently with the 204-month sentence imposed in

his state criminal case.2

             Vélez-Soto filed a timely notice of appeal, asserting

that the district court's sentence was procedurally unsound and

substantively unreasonable.




     1
      Because the conspiracy took place at or within 1,000 feet of
a housing facility owned by a public housing authority, the
statutory maximum for this drug conspiracy is 80 years based on a
stipulated drug quantity between 3.5 and 5 kilograms of cocaine.
See 21 U.S.C. § 860(a); see also id. § 841(b)(1)(B).
     2
       Vélez-Soto will thus complete his 204-month state sentence
while simultaneously serving his federal sentence.

                                  -4-
                                    II.

A. Standard of Review

           We review federal criminal sentences imposed under the

advisory Guidelines for abuse of discretion.                  Gall v. United

States, 552 U.S. 38, 51 (2007); United States v. Madera-Ortiz, 637

F.3d 26, 30 (1st Cir. 2011).        Within this framework, we review a

district   court's    factual    findings      for   clear   error,     and   its

interpretation and application of the Guidelines de novo.                United

States v. Walker, 665 F.3d 212, 232 (1st Cir. 2011).                Typically,

our review of a sentence imposed under the Guidelines involves a

two-step process.     "First, we evaluate the procedural soundness of

the sentence; second, we assay its substantive reasonableness."

Madera-Ortiz, 637 F.3d at 30.             The "procedural dimension" of

sentencing   review    includes     the    correctness       of   the   court's

application of the Guidelines, while "[t]he substantive dimension

focuses on the duration of the sentence in light of the totality of

the circumstances." United States v. Del Valle-Rodríguez, 761 F.3d

171, 176 (1st Cir. 2014).       Procedural errors amounting to an abuse

of   discretion   include   "failing      to    calculate     (or   improperly

calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting a

sentence based on clearly erroneous facts, or failing to adequately

explain the chosen sentence - including an explanation for any

deviation from the Guidelines range."           Gall, 552 U.S. at 51.          An


                                    -5-
error of law underlying a sentencing court's decision constitutes

an abuse of discretion.         See Walker, 665 F.3d at 223 (holding that

"a material error of law is invariably an abuse of discretion").

B. The Procedural Soundness of the Sentence

             Vélez-Soto argues that the district court's decision not

to impose a fully concurrent 108- to 120-month sentence, and its

failure to consider the commentary to U.S.S.G. § 5G1.3(c), rendered

its sentence procedurally unsound.

             A sentencing court has discretion to impose either a

consecutive or a concurrent sentence when a defendant is subject to

an undischarged state-court term of imprisonment.                  18 U.S.C. §

3584(a).    Nonetheless, in exercising this discretion, a sentencing

court must consider the factors set forth in 18 U.S.C. § 3553(a),

including     any    applicable      sentencing    Guidelines        or   policy

statements. Id. § 3584(b); United States v. Carrasco-de-Jesús, 589

F.3d 22, 27 (1st Cir. 2009). Although the Guidelines are no longer

mandatory,     "'district       courts     must   still     give     respectful

consideration       to   the     now-advisory     Guidelines       (and    their

accompanying policy statements).'"           United States v. Millán-Isaac,

749 F.3d 57, 67 (1st Cir. 2014) (quoting Pepper v. United States,

562 U.S. 476, 501 (2011)).

             The applicable version of Guidelines § 5G1.3(b) provides

for   a   concurrent     or    partially    concurrent    sentence    when   the

defendant is subject to a previously imposed but undischarged term


                                      -6-
of imprisonment that has "resulted from another offense that is

relevant conduct to the instant offense of conviction," if the

relevant conduct offense "was the basis for an increase in the

offense level."    U.S.S.G. § 5G1.3(b) (2012).             To gain the benefit

of § 5G1.3(b), "a defendant must prove that [he] satisfies each and

every   element   of     the   guideline,"      including    that     the   charge

underpinning the undischarged term of imprisonment was the basis

for an increase in the offense level for the offense of conviction.

Carrasco-de-Jesús, 589 F.3d at 27. Under § 5G1.3(c), a district

court "may impose a sentence concurrently, partially concurrently,

or consecutively" and "[t]he end result need only be 'reasonable.'"

United States v. Vázquez-Alomar, 342 F.3d 1, 5 (1st Cir. 2003)

(quoting United States v. Caraballo, 200 F.3d 20, 28 (1st Cir.

1999)).

             Vélez-Soto did not claim that his undischarged state

convictions were relevant conduct during his sentencing hearing,

nor does he so claim on appeal. Moreover, because the district

court accurately held that Vélez-Soto's state sentence for second

degree murder did not involve relevant conduct, and therefore that

§ 5G1.3(b) did not apply, the court was under no obligation to

impose a concurrent sentence.           See Carrasco-de-Jesús, 589 F.3d at

27.     In   declining    to   impose    a    108-   to   120-month   concurrent

sentence, the district court stated:

             I am not going to sentence concurrently [for
             108 to 120 months] because I think it's --

                                        -7-
               well it's totally unrelated conduct. This is a
               drug case, that's a murder case.         If I
               sentence concurrently [for that number of
               months], basically he's getting a freebie for
               the murder or for the drugs.

               The commentary to § 5G1.3(c) states that in determining

whether       to   impose   a     concurrent,   partially      concurrent,     or

consecutive sentence to an undischarged term of imprisonment, the

court       "should   consider"    the   following   factors   "to   achieve    a

reasonable incremental punishment for the instant offense and avoid

unwarranted disparity":

               (i) the factors set forth in 18 U.S.C. § 3584
               (referencing 18 U.S.C. § 3553(a));
               (ii)    the     type   (e.g.,    determinate,
               indeterminate/parolable) and length of the
               prior undischarged sentence;
               (iii) the time served on the undischarged
               sentence and the time likely to be served
               before release;
               (iv) the fact that the prior undischarged
               sentence may have been imposed in state court
               rather than federal court, or at a different
               time before the same or different federal
               court; and
               (v) any other circumstance relevant to the
               determination of an appropriate sentence for
               the instant offense.

U.S.S.G. § 5G1.3 cmt. n.3(A) (2012).

               The sentencing transcript reveals that the district court

evaluated the factors enumerated in the commentary to § 5G1.3(c).

The district court noted the type and length of Vélez-Soto's state

sentence,3 the time served on the undischarged state sentence and


        3
       The court noted that the state sentence was "17 years plus
the three years probationary period."

                                         -8-
the time likely to be served before release,4 and it properly took

into account that Vélez-Soto was convicted at the state level of

second degree murder and firearms violations.

            Furthermore, the court explicitly addressed the § 3553(a)

factors, including Vélez-Soto's prior criminal record, the need to

"provide   just     punishment      for    the   offense,"5      "afford     adequate

deterrence,"6      "protect   the    public      from   further     crimes    of    the

defendant,"7    and   provide     the     defendant      with    needed    training,

medical    care,    "or   other     correctional        treatment    in    the     most

effective manner."8 Id. § 3553(a)(2)(A)-(D).                    A sentencing court

need not "specifically address all of the § 3553(a) factors in its

explanation, nor . . . give each of the factors equal prominence in

its determination." United States v. Zapata, 589 F.3d 475, 487 (1st

Cir. 2009) (internal quotation marks omitted).                       The district



     4
       The court stated that "[i]f both sentences are served
consecutively, you know, he starts serving his State sentence once
he's served [the proposed federal sentence of] 108 months, which he
served already two years approximately."
     5
       The court emphasized the need for Vélez-Soto to serve his
entire state sentence in addition to a federal sentence, so as not
to get a "free bite at the apple" by "serving two sentences for the
price of one."
     6
       "The court understands that the federal system . . .
will . . . adequately deter him."
     7
       The court stressed the need to "protect the public from
further crimes of this gentleman."
     8
       The court stated that the sentence "will promote the best
rehabilitation possible."

                                          -9-
court's treatment of the § 3553(a) factors was adequate.                   Its

decision     to   impose   a   280-month     concurrent   sentence   was   thus

procedurally sound and within its discretion. See Setser v. United

States, 132 S. Ct. 1463, 1468 (2012) (stating that "[j]udges have

long been understood to have discretion to select whether the

sentences they impose will run concurrently or consecutively with

respect to other sentences that they impose, or that have been

imposed in other proceedings, including state proceedings").                In

sum,   the    record   shows    no   procedural    errors   in   Vélez-Soto's

sentencing.

C. Substantive Reasonableness of the Sentence

             Vélez-Soto further argues that a 280-month sentence,

which substantially exceeded the Guidelines range of 135 to 168

months, violates the requirement under § 3553(a) that the sentence

be "sufficient, but not greater than necessary, to comply with the

purposes" of sentencing.        18 U.S.C. § 3553(a).      He claims that the

district court imposed a substantively unreasonable sentence when

it refused to sentence him according to the parties' recommended

range of 108 to 120 months, or to vary upwards such that the state

and federal sentences would be coterminous and concurrent, and that

it erred in failing to properly weigh his history and the nature

and circumstances of the offense.

             When evaluating the substantive reasonableness of a

sentence that is outside the Guidelines range, we "must give due


                                      -10-
deference to the district court's decision that the § 3553(a)

factors, on a whole, justify the extent of the variance.             The fact

that the appellate court might reasonably have concluded that a

different sentence was appropriate is insufficient to justify

reversal of the district court."            Gall, 552 U.S. at 51.     When a

sentence deviates from the Guidelines, "[t]he court's reasons for

deviation should typically be rooted either in the nature and

circumstances     of   the   offense   or    the   characteristics    of   the

offender."     United States v. Martin, 520 F.3d 87, 91 (1st Cir.

2008).   We will uphold a district court's sentence "as long as the

court has provided a plausible explanation, and the overall result

is defensible." United States v. Innarelli, 524 F.3d 286, 292 (1st

Cir. 2008).

             As stated above, the district court adequately considered

the § 3553(a) factors and provided a sufficient explanation for its

sentence. The court considered, inter alia, Vélez-Soto's possession

of a weapon in the drug conspiracy, the violation of the terms of

his bail, his prior criminal conduct, and the request for Vélez-

Soto to serve his sentence in a federal facility.          If the district

court had imposed a 108-month consecutive sentence, the total

sentence would have been 312 months, the latter 204 months of which

would have been served in a state facility.               That within-the-

Guidelines sentence would have been far in excess of the sentence

imposed, and it would have required Vélez-Soto to serve time in a


                                   -11-
state facility.   The 280-month concurrent sentence amounts to 76

additional months on the federal conviction and allows Vélez-Soto

to serve the entirety of his sentence in a federal facility,

consistent with his request.

          Furthermore,   the   sentence   was   based   on   both   the

circumstances of the offense and Vélez-Soto's characteristics. The

court noted that the 280-month concurrent sentence was necessary to

"reflect[] the seriousness of the offense," the federal interest in

such a "big drug conspiracy," and to "adequately punish" Vélez-Soto

who, while on bail, "continued to commit criminal conduct."         The

court's emphasis on the nature of the crime over the mitigating

factors cited by Vélez-Soto "was a choice of emphasis that is not

a basis for a founded claim of sentencing error." Zapata, 589 F.3d

at 488 (internal quotation marks omitted).      The court provided a

plausible explanation for its sentence, grounded in the record, and

accordingly, it was substantively reasonable.

                                III.

          The district court did not abuse its discretion when it

sentenced Vélez-Soto to 280 months' imprisonment on his federal

drug charge, to be served concurrently with his state sentence.

Because the sentence was procedurally sound and substantively

reasonable, we affirm the judgment.

          So ordered.




                                -12-
