          United States Court of Appeals
                        For the First Circuit


Nos. 17-1144, 17-1247

                    UNITED STATES OF AMERICA,

                              Appellee,

                                 v.

                JOSHUAN DAVID CABALLERO-VÁZQUEZ,

                        Defendant, Appellant.


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

         [Hon. Francisco A. Besosa, U.S. District Judge]
       [Hon. Carmen Consuelo Cerezo, U.S. District Judge]


                               Before

                Torruella, Thompson, and Kayatta,
                         Circuit Judges.


     Johnny Rivera-González and Johnny Rivera's Law Office, on
brief for appellant.
     Mainon A. Schwartz, Assistant United States Attorney, Rosa
Emilia Rodríguez-Vélez, United States Attorney, and Mariana E.
Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate
Division, on brief for appellee.



                            July 18, 2018
            TORRUELLA, Circuit Judge.           After pleading guilty in two

separate cases, Joshuan David Caballero-Vázquez was sentenced

first for possessing ammunition as a convicted felon (the "Felon

in Possession Case") and then for possessing a machine gun (the

"Machine    Gun   Case").        In    this   consolidated      appeal,    he   now

challenges both of those sentences on procedural and substantive

grounds.    We affirm both sentences.

                                  I. Background

            We begin with an overview of the intertwined factual and

procedural events leading up to this appeal.                 Because this appeal

follows two different guilty pleas, we draw the facts from the

plea      agreements,         change-of-plea        colloquies,      presentence

investigation reports (PSRs), and sentencing hearings in both

cases.     See United States v. Reyes-Rivera, 812 F.3d 79, 82 (1st

Cir. 2016).

A.

            We start with the facts giving rise to the Machine Gun

Case.     On March 7, 2015, an officer from the Manatí, Puerto Rico

Municipal Police stopped Caballero-Vázquez after observing him

drive a Ford Edge against traffic, and then up onto the sidewalk.

After asking Caballero-Vázquez for his license and registration,

the officer noticed that the registration information Caballero-

Vázquez    provided     did    not    match   the   number    on   the   vehicle's


                                        -2-
registration sticker.     Suspecting a false registration sticker,

the officer seized both Caballero-Vázquez and the Ford Edge and

brought them to the Manatí Municipal Police Station.              There, an

inventory search of the vehicle yielded a loaded Glock .40 caliber

pistol that had been modified to function as a machine gun.

Moreover, a database search using the Glock's serial number would

later reveal that it had been reported as stolen from the residence

of its legal owner.

           A grand jury returned a one-count indictment against

Caballero-Vázquez for possessing a machine gun.            See 18 U.S.C.

§§ 922(o), 924(a)(2).     On September 2, 2015, Caballero-Vázquez,

after entering into a type-B plea agreement with the government,

pleaded guilty to that count.      See Fed. R. Crim. P. 11(c)(1)(B).

The parties jointly calculated a guidelines range to serve as the

basis for the plea agreement's sentencing recommendation.              They

began with a base offense level of 18, see U.S.S.G. § 2K2.1(a)(5),

but then subtracted three levels because Caballero-Vázquez had

accepted responsibility, see id. § 3E1.1, thereby arriving at an

adjusted offense level of fifteen.       The parties did not stipulate

to any particular Criminal History Category (CHC).           The parties

then   agreed   to   recommend   that    the   district   court    sentence

Caballero-Vázquez to a term of imprisonment at the lower end of

whatever it ultimately determined to be the applicable guidelines


                                   -3-
range.    Caballero-Vázquez agreed to waive his right to appeal if

he received a sentence in accordance with the plea agreement's

recommendation.

              The United States Probation Office then prepared a PSR,

which differed from the parties' guidelines calculations in only

one respect.        The PSR added two levels because the firearm in

question had been reported stolen, see id. § 2K2.1(b)(4), resulting

in a total offense level of 17.         The PSR assigned Caballero-Vázquez

a criminal history score of zero.           Caballero-Vázquez objected to

the   stolen-gun     enhancement   on     the   grounds    that    neither   the

indictment nor the plea agreement discussed the gun having been

stolen.      The government did not oppose that objection, consistent

with the plea agreement's provision that neither party would seek

additional offense-level enhancements or deductions.

B.

              The facts of the Felon in Possession Case are these.

While his objection to the stolen-gun enhancement in the Machine

Gun   Case    was   pending,   officers    from   the     Puerto   Rico   Police

Department on patrol in Manatí spotted Caballero-Vázquez -- who

had been released on bail -- driving a Hyundai Tucson that matched

the description of a vehicle that had been reported stolen.                  The

officers attempted to stop Caballero-Vázquez, but he did not

acquiesce, and instead drove off.               Reinforcements arrived and


                                    -4-
blocked his path.      Caballero-Vázquez pointed a gun at one of the

vehicles blocking his way, and then proceeded to lead the officers

on a high-speed chase through Manatí.              Ultimately, Caballero-

Vázquez abandoned his vehicle, leaving the keys in the ignition

and the door open, and fled on foot.        Officers discovered five .40

caliber bullets in the abandoned vehicle's cup holder.           Caballero-

Vázquez was later arrested at his residence in Manatí.

            A grand jury returned an indictment charging Caballero-

Vázquez with possessing ammunition as a person convicted of a crime

punishable by a term of imprisonment exceeding one year -- his

guilty plea in the Machine Gun Case supplying the predicate

conviction.    See 18 U.S.C. § 922(g)(1).          As in the Machine Gun

Case, he pleaded guilty after negotiating a type-B plea agreement

with the government.       Calculating the guidelines range for this

plea agreement, the parties started with a base offense level of

14,   see   U.S.S.G.   §   2K2.1(a)(6),    added   three    levels    because

Caballero-Vázquez      committed   the    underlying   offense      while   on

release, see id. § 3C1.3, but then subtracted three levels because

Caballero-Vázquez had accepted responsibility, see id. § 3E1.1.

The parties did not stipulate a CHC, but agreed to recommend a

sentence of imprisonment at the middle of the applicable guidelines

range "for a total adjusted offense level of 14, combined with

[Caballero-Vázquez's       CHC]    as     determined   by     the     Court."


                                    -5-
Caballero-Vázquez also agreed to waive his right to appeal so long

as the district court accepted the recommendation contained in the

plea agreement.

             The   PSR   for    the    Felon       in   Possession    Case       likewise

differed from the plea agreement in only one respect.                          It added a

two-level     enhancement        because          Caballero-Vázquez        "recklessly

created a substantial risk of death or serious injury to another

person in the course of fleeing from law enforcement officers."

See id. § 3C1.2.

C.

             Caballero-Vázquez received his sentence in the Felon in

Possession Case first.           The district court accepted the PSR's

guidelines    calculations       and    found       Caballero-Vázquez          to    be   in

CHC I, resulting in an advisory sentencing range of twenty-one to

twenty-seven months.           The district court expressed its belief,

however, that the parties' recommended sentence was too lenient.

The    district    court       therefore          varied   upwardly       to     sentence

Caballero-Vázquez to forty-eight months' imprisonment.                              It then

split that sentence into a thirty-six-month sentence for the

underlying    offense,     and     a    twelve-month           sentence    for       having

committed that offense while on release.                       See U.S.S.G. § 3C1.3

cmt.   1   (explaining     that,       to   comply      with    18   U.S.C.      §    3147,

sentencing courts "should divide the sentence . . . between the


                                            -6-
sentence attributable to the underlying offense and the sentence

attributable to the enhancement").

            Sentencing in the Machine Gun Case then took place.          The

district court ultimately sustained Caballero-Vázquez's objection

to the two-level stolen-gun enhancement.            An addendum to the PSR

thus eliminated that enhancement, but added three criminal history

points to reflect the outcome of the Felon in Possession Case.

This put Caballero-Vázquez in CHC II.          The district court adopted

the plea agreement's guidelines calculation, which, when combined

with Caballero-Vázquez's new CHC, resulted in a range of twenty-

one to twenty-seven months.          Finding a higher-end guidelines

sentence to be appropriate, the district court imposed a sentence

of twenty-seven months' imprisonment, to be served consecutively

with Caballero-Vázquez's sentence in the Felon in Possession Case.

            Caballero-Vázquez now challenges his sentences in both

cases.

                                II. Analysis

            Caballero-Vázquez and the government both agree that his

appellate waivers are unenforceable because, despite what the plea

agreements recommended, he did not receive a lower-end guidelines

sentence in the Machine Gun Case, and his sentence in the Felon in

Possession case was not based on a total offense level of fourteen.

Those    waiver   provisions,    therefore,    do   not   prevent   us   from


                                    -7-
considering     the   procedural   and    substantive     challenges       that

Caballero-Vázquez now brings.

A.

          We begin with Caballero-Vázquez's claims of procedural

unreasonableness.      "[S]ignificant procedural error[s]" 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."     United States v. Martin, 520 F.3d 87, 92 (2008)

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

          The    government    contends   that    --   because     Caballero-

Vázquez failed to raise any procedural objections below -- we must

review only for plain error.       Caballero-Vázquez's appellate brief

does not make any explicit arguments about the proper standard of

review.   Nonetheless, even if we assume that Caballero-Vázquez

should benefit from a more favorable standard of review than plain

error, his procedural challenges still fail.           In considering these

challenges -- consistent with our assumption that plain error

review is not warranted here -- we review the sentencing courts'

interpretation and application of the guidelines de novo, their

factual findings for clear error, and their "judgment calls" for


                                    -8-
abuse of discretion.        United States v. Ruiz-Huertas, 792 F.3d 223,

226 (1st Cir. 2015).

                                        1.

              Caballero-Vázquez       first     challenges     both   sentencing

courts' use of the factors that 18 U.S.C. § 3553(a) sets forth,

which are, by that provision's own terms, "to be considered in

imposing a sentence."            Here, both courts were explicit about

having arrived at their sentencing decisions after considering the

§ 3553(a) factors.         Those statements are "entitled to significant

weight."      United States v. Santiago-Rivera, 744 F.3d 229, 233 (1st

Cir. 2014).      But, Caballero-Vázquez presses that both sentencing

courts unduly focused only on the negative factors.                    Claims of

this   sort    face   an    uphill    battle.       "Decisions     [that   involve

weighing the § 3553(a) factors] are within the sound discretion of

sentencing     courts,     and   we   'will   not    disturb   a   well-reasoned

decision to give greater weight to particular sentencing factors

over others.'"        United States v. Santini-Santiago, 846 F.3d 487,

492 (1st Cir. 2017) (quoting United States v. Gibbons, 553 F.3d

40, 47 (1st Cir. 2009)).1


1  Caballero-Vázquez has not specified whether the sentencing
courts' purported failure to consider mitigating factors goes to
the procedural or substantive reasonableness of his sentences.
The government treats these arguments as relevant to procedural
reasonableness. We note that our precedent is less-than-clear as
to whether a sentencing court's weighing of mitigating factors
implicates procedural or substantive reasonableness. For example,

                                        -9-
           It is true that both sentencing courts emphasized the

factors they found to cut in favor of a harsher sentence.          In the

Felon in Possession Case, the district court noted that Caballero-

Vázquez had pointed a gun at a police officer, and then led

officers on a high speed chase against the flow of traffic, which

placed innocent bystanders at risk.        Likewise, in the Machine Gun

Case, the sentencing court highlighted "the serious nature of the

offense of conviction, which involved the possession of a machine

gun," and also noted that Caballero-Vázquez committed another

offense while on release.          Nonetheless, both sentencing courts

also expressly considered potential mitigating factors.            In the

Felon in Possession Case, the court made reference to Caballero-

Vázquez   having   completed   a    GED,   being   employed,   having   one


both Santini-Santiago, and Alejandro-Rosado regard challenges of
this sort as procedural reasonableness challenges, but in
analyzing them, cite cases that address them as substantive
reasonableness challenges. See Santini-Santiago, 846 F.3d at 489,
492 (quoting Gibbons, 553 F.3d at 47); United States v. Alejandro-
Rosado, 878 F.3d 435, 439 (1st Cir. 2017) (citing United States v.
Vargas-García, 794 F.3d 162, 167 (1st Cir. 2015)); cf. United
States v. Ruiz-Huertas, 792 F.3d 223, 227 (1st Cir. 2015) (finding
no procedural error when "the defendant's real complaint is not
that the court failed to consider the section 3553(a) factors, but
that the court did not assign the weight to certain factors that
the defendant thought appropriate"). But see Gall, 552 U.S. at
57-59 (treating the district court's weighing of mitigating
factors as relevant to substantive reasonableness). We need not
decide how to properly characterize such arguments here, though,
because our assumed standard of review for Caballero-Vázquez's
procedural and substantive reasonableness challenges is abuse of
discretion. See supra § II.A; infra § II.B.


                                    -10-
dependent, and having a history of using controlled substances.

And in the Machine Gun Case, the sentencing court noted that

Caballero-Vázquez "has a baby daughter," had completed a GED, was

employed prior to his arrest, and has a history of substance abuse.

             We discern no error.              "Though the district court's

consideration was unfavorable to the defendant, the fact that it

weighed some factors more heavily than others does not amount to

procedural error."          Alejandro-Rosado, 878 F.3d at 439 (citing

United States v. Vargas-García, 794 F.3d 162, 167 (1st Cir. 2015));

see also United States v. Cruz-Vázquez, 841 F.3d 546, 550 (1st

Cir.   2016).       Moreover,     to   the   extent      that      Caballero-Vázquez

protests     that    the    sentencing       courts      glossed         over        certain

mitigating      factors    included     in     the    PSRs    --    e.g.,       that    his

biological father died before his birth, or that his mother and

step-father      suffered    from      depression       and     anxiety         --    those

arguments are similarly unavailing.              See United States v. Lozada-

Aponte, 689 F.3d 791, 793 (1st Cir. 2012) ("The potentially

mitigating    factors      [the   defendant]         identifies     on    appeal       were

thoroughly discussed in the presentence report; that the district

court did not explicitly mention them during the sentencing hearing

suggests they were unconvincing, not ignored.").




                                        -11-
                                      2.

            Caballero-Vázquez's challenges to the calculation of his

CHC in both cases also fail, as neither CHC calculation was the

product of error.        When Caballero-Vázquez was sentenced in the

Felon in Possession Case -- though still awaiting his sentence in

the Machine Gun Case -- he had nonetheless already pleaded guilty

to possessing a machine gun.          As a result, the sentencing court

properly counted that offense towards his CHC.                   See U.S.S.G.

§ 4A1.2(a)(4) ("Where a defendant has been convicted of an offense,

but not yet sentenced, such conviction shall be counted as if it

constituted a prior sentence under § 4A1.1(c) if a sentence

resulting from that conviction otherwise would be countable.").

Thus, we find no error in Caballero-Vázquez's resulting criminal

history score of one, which put him in CHC I.            See id. §§ 4A1.1(c),

5A.   Nor    did   the   sentencing    court     in   the   Machine   Gun   case

miscalculate Caballero-Vázquez's CHC.             It correctly found that

Caballero-Vázquez's      sentence   in     the   Felon   in   Possession    Case

corresponded to an additional three criminal history points, which

put him in CHC II.       See id. §§ 4A1.1(a), 5A.

                                      3.

            Caballero-Vázquez's final procedural challenge involves

the determination of the sentencing court in the Machine Gun Case

that he should serve his sentence in that case consecutively to


                                    -12-
his sentence in the Felon in Possession case.         But that decision,

as Caballero-Vázquez acknowledged before the district court and in

his appellate brief, is discretionary in nature.                See United

States v. Carrasco-De-Jesús, 589 F.3d 22, 27 (1st Cir. 2009).

18 U.S.C. § 3584(b) instructs courts to consider the § 3553(a)

factors in deciding whether a sentence should run concurrently and

consecutively.      And here, our recognition that the court in the

Machine Gun Case properly considered those factors in fashioning

Caballero-Vázquez's sentence also leads us to conclude that it did

not abuse its discretion in imposing that sentence consecutively.

B.

             We now turn to Caballero-Vázquez's insistence that his

high-end guidelines sentence in the Machine Gun Case and his

upwardly variant sentence in the Felon in Possession case were

both substantively unreasonable.        Here too, we can assume that our

standard of review is for abuse of discretion.           See Vargas-García,

794 F.3d at 167 (observing that "most courts hold that an objection

in the district court is not needed to preserve a claim that a

sentence is substantively unreasonable" and assuming that abuse of

discretion is the proper standard) (citing Ruiz-Huertas, 792 F.3d

at   228).     We   have   recognized    that   "[t]he    hallmarks   of   a

substantively reasonable sentence are 'a plausible sentencing

rationale and a defensible result.'"            United States v. Zapata-


                                  -13-
Vázquez, 778 F.3d 21, 24 (1st Cir. 2015) (quoting Martin, 520 F.3d

at 96).     Both of the sentences at issue here exhibit these

features.

            In the Felon in Possession Case, the court found an

upward variance justified, among other reasons, because Caballero-

Vázquez was on release when he committed the offense, and because

he had pointed a gun at an officer while attempting to avoid

apprehension.    In the Machine Gun Case, the district court found

a sentence at the upper end of the applicable guidelines range to

be appropriate, among other reasons, in light of the facts of the

Felon in Possession Case.        These sentencing rationales do strike

us as plausible.       See id.      And whether we take both of them

individually    or   analyze    them   together,   we   cannot   avoid   the

conclusion that Caballero-Vázquez's consecutive twenty-seven and

forty-eight month sentences both occupy "the expansive universe of

substantively reasonable sentences."         United States v. Matos-De-

Jesús, 856 F.3d 174, 180 (1st Cir. 2017).

                               III. Conclusion

            Because Caballero-Vázquez's procedural and substantive

challenges to his sentences fail, we affirm both sentences.




                                    -14-
