          United States Court of Appeals
                     For the First Circuit


No. 15-2248

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                      JOSÉ A. MILLÁN-ROMÁN,

                      Defendant, Appellant.


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

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


                             Before

                Torruella, Thompson, and Barron,
                         Circuit Judges.


     Carlos M. Sánchez La Costa for appellant.
     Francisco A. Besosa-Martínez, 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.


                         April 14, 2017
             BARRON, Circuit Judge. This appeal requires us to review

José Millán-Román's challenge to the 120-month prison sentence

that   he   received   after   he    pled      guilty,      pursuant    to    a    plea

agreement, to two offenses: possession of a firearm in furtherance

of a drug trafficking crime, in violation of 18 U.S.C. § 924(c),

and possession of controlled substances with intent to distribute,

in violation of 18 U.S.C. § 841(b)(1)(C).                  We affirm.

                                         I.

             Millán entered his plea in June 2015. The plea agreement

set forth detailed recommendations regarding the sentence.

             As to the firearms count, the plea agreement stated that

the    applicable   sentence      under       the    United    States   Sentencing

Commission    Guidelines    was     60    months      of    imprisonment      --   the

statutory    minimum   sentence     for       that    offense.      See      U.S.S.G.

§2K2.4(b) (noting that the guideline sentence for a conviction

under 18 U.S.C. § 924(c) is the minimum term of imprisonment

required by statute).      Nonetheless, the plea agreement recommended

an upward-variant sentence of 84 months of imprisonment.                     The plea

agreement did not give a reason for this upward-variant sentence,

but Millán's defense counsel acknowledged at sentencing that the

parties had stipulated to a sentence higher than the statutory

minimum "knowing that [the sentencing judge] was not going to give

him [the statutory minimum]."




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           Regarding      the   controlled-substances   count,   the    plea

agreement stated that, under the Guidelines, Millán had a base

offense level of twelve, but that he was entitled to a two-level

reduction for acceptance of responsibility under U.S.S.G. §3E1.1.

The plea agreement thus calculated Millán's total offense level to

be ten.

           The plea agreement did not set forth a criminal history

category ("CHC") for Millán.        But the plea agreement stated that

the recommended sentencing range under the Guidelines would be 6-

12 months of imprisonment if Millán had a CHC of I and 8-14 months

of imprisonment if Millán had a CHC of II.

           The plea agreement then recommended a sentence of six

months of imprisonment for the controlled-substance offense.             The

plea agreement also recommended that this sentence be served

consecutively to the 84-month prison sentence for the firearms

offense.   Thus, the plea agreement recommended a total sentence of

90 months' imprisonment.

           On September 22, 2015, the District Court imposed a

sentence of 114 months' imprisonment for the firearm offense, and

six months' imprisonment for the controlled-substance offense, to

be served consecutively, for a total prison sentence of 120 months.

The District Court also imposed five years' supervised release.

           On   appeal,    Millán   contends   that   the   District   Court

committed a number of errors -- some of which he characterizes as


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procedural and others as substantive -- in calculating his sentence

for the firearms count.

                                           II.

             We    begin      with   the    claims    of   error   that     Millán

characterizes as procedural.             Because Millán did not object to the

District Court's sentencing decision below, our review is for plain

error.   United States v. Arroyo-Maldonado, 791 F.3d 193, 197 (1st

Cir. 2015).       Thus, Millán 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.       Id.

                                           A.

             Millán argues, first, that the District Court committed

procedural    error      by    failing     properly   to   consider     mitigating

factors as required by 18 U.S.C. § 3553(a).                Specifically, Millán

contends that the District Court failed to consider that Millán

was a first-time offender, that he had no prior adult criminal

history, that he was close with his family, that he was employed,

and that he helped to support his three-year-old son.

             The record makes clear, however, that the District Court

was aware of these mitigating factors, as Millán's defense counsel

elucidated them at the sentencing hearing.                  The District Court

also expressly noted that Millán "has no criminal record, no


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arrests, nothing," and added: "He's a young guy. The amount of

drugs he had was small, if you think about it."

          The   District   Court    did     not   expressly      mention   the

particular mitigating factors Millán now identifies on appeal as

ones that were overlooked.          But, while district courts must

consider factors listed in § 3553(a) at sentencing, United States

v. Lozada-Aponte, 689 F.3d 791, 793 (1st Cir. 2012), "we do not

require an express weighing of mitigating and aggravating factors

or that each factor be individually mentioned."           Id.    Moreover, we

have held that the failure of a district court to "explicitly

mention them during the sentencing hearing suggests they were

unconvincing, not ignored."      Id.     Thus, Millán does not meet his

substantial burden of showing that the District Court plainly

erred.

                                    B.

          Separately,   Millán     argues    that   the    District     Court

committed procedural error by justifying the sentence in part by

reference to the "Tómbola massacre" -- a 2009 shooting in Sabana

Seca, the community in which Millán resided and in which a number

of people were killed -- without following the procedure for

"bring[ing] [a defendant's] uncharged conduct into play."              United

States v. Sklar, 920 F.2d 107, 110 (1st Cir. 1990).             But the record

makes clear that the District Court was not suggesting that Millán




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was in any way responsible for the massacre, and so Millán's

argument rests on a mistaken premise.

          Moreover, we have made clear that, in considering the

need for deterrence, see 18 U.S.C. § 3553(a)(2)(B), district courts

may take into account not only the need for individual deterrence,

but also the need for community deterrence within the defendant's

particular community.   See United States v. Flores-Machicote, 706

F.3d 16, 22-23 (1st Cir. 2013) (holding that "a sentencing judge

may   consider   community-based   and   geographic   factors"   and

explaining that "the incidence of particular crimes in the relevant

community appropriately informs and contextualizes the relevant

need for deterrence"); Lozada–Aponte, 689 F.3d at 793 (noting that

sentencing judge's discussion of "incidence of crime in Puerto

Rico" was a "permissible [sentencing] consideration"); United

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

sentencing court "to take into account all of the circumstances

under which [the defendant] committed the offense, including the

particular community in which the offense arose").    Thus, while we

question the weight that may be given to a now seven-year-old

incident, the District Court did not plainly err in referencing

this incident as part of its more general explanation of the need

for community deterrence, given what the District Court perceived

to be the scourge of drugs and guns in Puerto Rico.




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                                C.

           Millán next contends that the District Court committed

procedural error in failing to give Millán an opportunity to

address the Court about the Tómbola massacre.    See United States

v. Berzon, 941 F.2d 8, 18-19 (1st Cir. 1991).   We disagree.

           The District Court first raised the Tómbola massacre

when Millán entered his guilty plea, prior to the sentencing

hearing.   The District Court asked, "You know for example what

happened in Sabana Seca some years ago? The La Tómbola? . . . You

know what happened there, how many people were killed?"        Millán

responded, "Yes," and the District Court stated that the massacre

was "the consequence of firearms" like those Millán pled guilty to

possessing.   Millán neither objected nor sought to address the

matter with the Court.

           Then, at the sentencing hearing itself, the District

Court gave Millán's defense counsel another opportunity to address

the Court regarding the massacre:

           District Court: Isn't it a fact, sir, that [Sabana
           Seca] is an area of high criminality where horrible
           things have occurred in the past? Including the
           famous case I tried a couple of years ago involving
           the murder of 13 people, the Alexis Candelario
           case?

           Defense counsel: We are aware.

           District Court: Isn't that a fact?

           Defense counsel: It is.



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            Given this record, there is no basis for concluding that

Millán   was   not   given   an    opportunity   to   address   the   Tómbola

massacre.

                                     III.

            Finally, Millán brings a claim that he characterizes as

substantive. He contends that his sentence is unreasonable because

the District Court placed too much weight on the Tómbola massacre,

and did so at the expense of considering the particular facts of

Millán's conviction.       Though Millán characterizes this claim as a

claim of substantive error, the case he relies on in making this

claim treats this type of error as procedural.           See United States

v. Santiago-Rivera, 594 F.3d 82, 83 (1st Cir. 2010).            So, too, do

we.   See also Flores-Machicote, 706 F.3d at 22-24 (finding no

procedural error where District Court placed great weight on

violence in the community but also paid sufficient heed to the

facts particular to the defendant's case).            Thus, we again apply

the standard of review that we use for claims of procedural error

that were not raised below -- namely, plain error.              See Arroyo-

Maldonado, 791 F.3d at 197.

            While a court may consider the incidence of crimes in

the defendant's geographic community in order to properly weigh

the need for community deterrence, "[a] sentencing judge's resort

to community-based characteristics does not relieve him or her of

the   obligation     to   ground   sentencing    determinations   in   case-


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specific factors."         Flores-Machicote, 706 F.3d at 24 (citation

omitted).     Accordingly, "[i]t is possible for a sentencing judge

to   focus   too    much   on   the   community   and   too   little   on   the

individual."       Id.

             The District Court here, however, committed no such

error.   Rather, the District Court discussed the facts of Millán's

particular conviction in detail and specifically enumerated each

firearm that Millán pled guilty to possessing, stating:

             The firearms were AK-47 type rifle with an
             obliterated serial number, loaded with 41 rounds,
             and one in the chamber; a Baretta pistol, nine
             millimeter, loaded with 11 rounds, and one in the
             chamber; a Baretta pistol, nine millimeter, bearing
             whatever serial number, loaded with 11 rounds, and
             one in the chamber; a Smith and Wesson pistol,
             caliber -- .40 caliber, loaded with 12 rounds, and
             one in the chamber, in furtherance of a drug
             trafficking crime.

The District Court then explained that the 84-month sentence

recommended by the parties in the plea agreement did not "seem to

correlate with this number of firearms" and the firearms' "deadly

fire power."

             In addition, the District Court observed that, unless

Millán was storing the firearms for someone else, the nature of

the firearms suggested that Millán "was involved in big time drug

dealing and he understood that he needed all these things to

protect these drugs and his business."             And the District Court

noted that, according to the unchallenged pre-sentence report,



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Millán "voluntarily stated to the police, to the agents, that he

is indeed a drug dealer."              The District Court concluded that the

pre-sentence report painted a picture "not of an individual who

was storing firearms for somebody else," but "of a man who has no

criminal record, who is young, who accepted being a drug dealer,

and who had all these guns in reference to his drug trafficking

crimes."

              Thus, while the District Court noted the massacre in the

context of considering the need for community deterrence, it did

not do so at the expense of considering the facts of Millán's

individual case.           Accordingly, Millán has not shown that the

District Court erred procedurally.

              Millán appears to separately assert that the length of

his sentence was substantively unreasonable.                       The law in our

circuit is unsettled as to whether we review claims of substantive

error   for    abuse      of   discretion    or   for    plain    error     where   the

defendant fails to object below.             United States v. Arsenault, 833

F.3d 24, 29 (1st Cir. 2016).              We need not resolve this question

here, as Millán's claim fails even under the more favorable abuse

of discretion standard.

              "The   essence      of    appellate       review     for    substantive

reasonableness       is    whether     the   sentence     is     the   product   of   a

plausible . . . rationale and a defensible result."                      United States

v. Rivera-González, 776 F.3d 45, 51 (1st Cir. 2015) (citation


                                        - 10 -
omitted).    As discussed above, the District Court articulated a

plausible rationale for arriving at its sentence by weighing the

relevant facts of the offense and the need for deterrence against

the mitigating factors.      To be sure, the sentence the District

Court arrived at was higher than the statutory minimum of 60 months

and the 84-month sentence jointly recommended by the parties.             But

the District Court was not bound by the parties' recommended

sentence. See id. And "a mandatory minimum sentence is just that:

the lowest sentence that can lawfully be imposed. A sentencing

court may lawfully select a higher sentence up to the statutory

maximum (which in [18 U.S.C. § 924(c)] is life imprisonment)."

Id.   at   51-52.   Thus,   to   the   extent   that   this   challenge    is

preserved, it, too, fails, as we see no basis for concluding on

this record that the sentence that resulted was unreasonably long.

                                   IV.

            For the foregoing reasons, the sentence is affirmed.




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