          United States Court of Appeals
                     For the First Circuit


No. 14-1444

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                   MELVIN HERNÁNDEZ-MALDONADO,

                      Defendant, Appellant.


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

        [Hon. Juan M. Pérez-Giménez, U.S. District Judge]


                             Before

                  Torruella, Lynch, and Lipez,
                         Circuit Judges.



     Charles Allan Hope and Cunha & Holcomb, P.C., on brief for
appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Tiffany V. Monrose, Assistant United States
Attorney, on brief for appellee.



                          July 17, 2015
          LYNCH, Circuit Judge.          Melvin Hernández-Maldonado pled

guilty in October 2013 to being a prohibited person in possession

of a firearm, in violation of 18 U.S.C. § 922(g)(1), and was

sentenced to 115 months imprisonment.

          He now seeks to vacate his plea because the district

court did not warn him that he could not withdraw his plea if the

court did not follow the parties' sentencing recommendations, as

required by Federal Rule of Criminal Procedure 11(c)(3)(B), though

the plea agreement did contain this warning.                Under the plea

agreement,     the    government   agreed     to   recommend      92   months

imprisonment, and Hernández-Maldonado agreed to request 60 months.

The plea agreement specified the sentencing guideline range was

between 92 and 115 months, with a maximum penalty of 120 months.

Hernández-Maldonado also challenges his 115 month sentence as

unreasonable.

          We affirm Hernández-Maldonado's conviction and sentence.

Hernández-Maldonado      has   failed    to   demonstrate     a   reasonable

probability that, but for the district court's failure to advise

him that he could not withdraw his plea if it did not follow the

government's recommendation, he would not have entered the plea.

Furthermore,    the    sentence    the     district   court    imposed    was

procedurally and substantively reasonable.




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                                   I.

             We confine our discussion of the facts to those necessary

to frame the issues on appeal.           The relevant facts are not in

dispute.     On March 23, 2012, a woman told two Puerto Rico Police

Department agents that a man was being robbed and pointed to him.

The agents observed three individuals in a 2001 Ford Explorer SUV

wearing masks.     When the individuals in the SUV saw the agents,

they left the scene, first in the SUV and then on foot.        The agents

pursued the individuals and saw the driver was carrying a firearm.

One agent saw the driver toss the firearm and then remove his mask

and shirt as he ran.     The agent recovered the firearm -- a pistol

with   an   attached   "chip,"   which    allowed   the   pistol   to   fire

automatically.      The driver was later identified as Hernández-

Maldonado.    The investigation revealed that the SUV was stolen and

that Hernández-Maldonado had previously been convicted on two

occasions of crimes punishable by more than one year imprisonment.

One of these convictions was for murder.        Hernández-Maldonado was

on probation for that crime when he was arrested.

                                   II.

             Hernández-Maldonado, through different counsel, seeks to

vacate his guilty plea because the district court failed to meet

the requirement of Federal Rule of Criminal Procedure 11(c)(3)(B)

that, "[t]o the extent the plea agreement is of the type specified

in Rule 11(c)(1)(B), the court must advise the defendant that the


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defendant has no right to withdraw the plea if the court does not

follow the recommendation or request."             Because there was no

objection, the district court's failure to give the required

warning     is   reviewed   for   plain   error.   See    United   States    v.

Dominguez Benitez, 542 U.S. 74, 76 (2004); United States v.

Borrero-Acevedo, 533 F.3d 11, 15 (1st Cir. 2008) (citing United

States v. Vonn, 535 U.S. 55, 58-59 (2002)).              Hernández-Maldonado

must prove "(1) an error, (2) that is clear or obvious, (3) which

affects his substantial rights . . . and which (4) seriously

impugns the fairness, integrity, or public reputation of the

proceeding."      United States v. Correa-Osorio, 784 F.3d 11, 18 (1st

Cir. 2015).

             Because it is clear that the defendant has established

the first two prongs, this case turns on the third prong of the

plain error test, effect on substantial rights.                See Borrero-

Acevedo, 533 F.3d at 17.          To meet the third prong of the plain

error test, "a defendant who seeks reversal of his conviction after

a guilty plea, on the ground that the district court committed

plain error under Rule 11, must show a reasonable probability that,

but for the error, he would not have entered the plea."            Dominguez

Benitez, 542 U.S. at 83.          Hernández-Maldonado has failed to make

this showing.

             We look to the full record.       Id. at 80 (citing Vonn, 535

U.S.   at   74-75).     Relevant     factors   include,    inter   alia,    the


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defendant's statements at the colloquy, "the overall strength of

the Government's case and any possible defenses that appear from

the   record,"   and    the   inclusion   of   the     warning    in    the    plea

agreement.     See id. at 84-85.

             Hernández-Maldonado    signed      a     plea   agreement,       which

itself contained the required warning.          He stated that he had time

to consult with his attorney and was satisfied with the attorney's

services.    Further, he acknowledged that under the plea agreement,

he surrendered the right to appeal if the court sentenced pursuant

to the recommendation -- suggesting Hernández-Maldonado understood

he could appeal if the court did not sentence according the

recommendation.

             Whether or not Hernández-Maldonado subjectively believed

he had a strong case, the question is whether he has met his burden

of showing a reasonable probability that he would not have pled

guilty if the missing warning had been administered.                   See id. at

83. Hernández-Maldonado has not come close to meeting that burden.

He is no neophyte to the criminal justice system.                He voluntarily

entered into a plea agreement and received the benefit of a 92-

month   sentence   recommendation    from      the    government,      below   the

maximum penalty.       This "plea agreement . . . specifically warned

that he could not withdraw his plea if the court refused to accept

the   Government's     recommendations.        This    fact,   uncontested      by




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[Hernández-Maldonado], tends to show that the Rule 11 error made

no difference to the outcome here."             Id. at 85.

                                       III.

               Hernández-Maldonado      also     argues    that        the    district

court's       115-month    sentence,    at     the   top       of     the    guideline

recommendation and five months below the 120 month maximum, was

unreasonable.        He contends that his "history and characteristics,"

including his completion of high school and steady employment

despite       a    troubled   childhood,       dictated    a        lower    sentence.

Hernández-Maldonado acknowledges that he did not object to the

sentence at sentencing and concedes that his sentence is reviewed

for plain error.        See United States v. Ruiz-Huertas, ___ F.3d ___,

2015 WL 4086319, at *2 (1st Cir. July 7, 2015).                 We recognize that

other       circuits   have   not   required     a   defendant        to     object   at

sentencing to preserve a substantive reasonableness challenge.

Id. at *4 (collecting cases).          "This court, however, has held . . .

that a failure to interpose an objection in the district court to

the substantive reasonableness of a sentence begets plain error

review."          Id. (avoiding the question and assuming the abuse of

discretion standard applies);1 see also United States v. Murphy-


        1
       We note that Hernández-Maldonado waived any challenge to
the standard of review by acknowledging in his brief that plain
error review applies. See Correa-Osorio, 784 F.3d at 21 (citing
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)). Even
if we assume that the abuse of discretion standard applies,
Hernández-Maldonado's challenge still fails.   Cf. Ruiz-Huertas,


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Cordero, 715 F.3d 398, 402 (1st Cir. 2013) ("We discern no error,

plain or otherwise.").

           We   review    sentences    for    procedural   and    substantive

reasonableness.       Ruiz-Huertas, 2015 WL 4086319, at *1.               The

district   court's       sentence     was     neither   procedurally      nor

substantively unreasonable.

           To   the    extent   Hernández-Maldonado        challenges     the

procedural reasonableness of his sentence, that claim fails.              Cf.

United States v. Crespo-Ríos, 787 F.3d 34, 37 n.3 (1st Cir. 2015)

("The lack of an adequate explanation can be characterized as

either a procedural error or a challenge to the substantive

reasonableness of the sentence.").             Procedural reasonableness

includes   "that   the    district    court    committed   no     significant

procedural error, such as 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."         United States v. Martin, 520 F.3d

87, 92 (1st Cir. 2008) (quoting Gall v. United States, 552 U.S.

38, 51 (2007)) (internal quotation marks omitted).               The district

court did not improperly calculate the guidelines range, fail to




2015 WL 4086319, at *4.


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consider the § 3553(a) factors, or commit any other procedural

error.

            Hernández-Maldonado's sentence was also substantively

reasonable.        "[T]here is almost always a range of reasonable

sentences for any given offense. . . . [T]he linchpin of a

reasonable sentence is a plausible sentencing rationale and a

defensible result."          United States v. Santiago-Rivera, 744 F.3d

229, 234 (1st Cir. 2014) (internal citations and quotation marks

omitted).     Furthermore, reversals in substantive reasonableness

challenges are "particularly unlikely when . . . the sentence

imposed     fits    within    the   compass   of   a    properly   calculated

[guidelines sentencing range]."        Ruiz-Huertas, 2015 WL 4086319, at

*4 (alterations in original) (quoting United States v. Vega-

Salgado, 769 F.3d 100, 105 (1st Cir. 2014)) (internal quotation

marks omitted).

            Hernández-Maldonado has prior convictions, including one

for murder.    When he was on probation,2 he was in a stolen vehicle,

in a mask, in possession of a machine gun.             In an attempt to evade

the Puerto Rico Police Department, he ran across a highway,

creating danger not only to the police but those on the road.             The

district court explicitly stated that it reviewed the guideline

calculations and considered Hernández-Maldonado's education level,


     2 The government apparently misspoke at sentencing when it
said that Hernández-Maldonado was on parole.


                                     - 8 -
lack of substance abuse, and the absence of a history of mental or

emotional health problems. "While a sentencing court must consider

all of the applicable [18 U.S.C. §] 3553(a) factors, it is not

required to address those factors, one by one, in some sort of

rote   incantation   when   explicating   its   sentencing   decision."

United States v. Dixon, 449 F.3d 194, 205 (1st Cir. 2006); see

also Ruiz-Huertas, 2015 WL 4086319, at *2.       We find the district

court committed no error and its sentence was reasonable.

                                  IV.

           For the reasons set forth above, we affirm Hernández-

Maldonado's conviction and sentence.




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