          United States Court of Appeals
                      For the First Circuit


No. 17-1098

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                   SANTOS DANIEL RONDÓN-GARCÍA,

                      Defendant, Appellant.


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

        [Hon. Aida M. Delgado-Colón, U.S. District Judge]


                              Before

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



     Mary June Ciresi, on brief for appellant.
     John A. Mathews II, 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.



                          March 23, 2018
            TORRUELLA, Circuit Judge.          In this sentencing appeal,

the Defendant-Appellant Santos Daniel Rondón-García ("Rondón")

insists that his eighteen-month sentence is both procedurally

and    substantively     unreasonable.         After    careful     review,    we

affirm.

                              I.    Background

            As   this    appeal     concerns     the     imposition     of    the

defendant's sentence, we briefly summarize the relevant facts

and charted course of this case.             We note that, because Rondón

pled guilty and does not challenge the factual background, we

draw     those   facts    from     the     change-of-plea      colloquy,      the

unchallenged portions of the Presentence Investigation Report

("PSR"), and the transcript of the sentencing hearing.                        See

United States v. Fernández-Santos, 856 F.3d 10, 14 n.1 (1st Cir.

2017).

            On   September   8,    2015,    agents     from   the   Puerto    Rico

Police    Department's    Bayamón    Intelligence       Division    executed    a

search warrant at Rondón's residence, where he lived with his

common law wife, Alitza Rodríguez-Castrillón ("Rodríguez"), and

their three children.         After the agents detained Rondón and

Rodríguez in the living room, they searched the residence and

seized two notebooks containing drug ledgers, forty-one small

plastic zip-lock baggies containing a white powder that field


                                     -2-
tested     positive       for     cocaine,          two    cellular       telephones,       one

fifteen-round         capacity        magazine       fit    for    a    9mm     Glock    pistol

containing thirteen rounds of ammunition, and one crack pipe.

The police did not find a gun in the residence.

               That    same     day,    agents       from    the       Bureau    of   Alcohol,

Tobacco,        Firearms,       and     Explosives         ("ATF")       arrested       Rondón.

After waiving his Miranda rights, Rondón admitted to selling the

cocaine, but stated that he did not remember the pistol magazine

being there and that it could belong to a friend.                                       The ATF

agents     also       arrested        and    interviewed          Rodríguez      who,     after

waiving her Miranda rights, stated that she did not know that

Rondón had the cocaine and that, about a month prior, she saw

Rondón walking in the street with a black firearm.                               She further

told the agents that she did not know if Rondón owned a gun, but

she had not seen him with a weapon in the house.

               On September 9, 2015, Rondón was charged by Complaint

with possession with intent to distribute cocaine, in violation

of 21 U.S.C. § 841(a)(1).                   On September 17, he was released on

bail     into     Rodríguez's         custody        and    ordered       to    comply     with

conditions of his release.                   On November 24, 2015, pursuant to a

plea agreement, Rondón waived indictment and pled guilty to an

Information       charging       him        with   one     count    of    possession       with

intent    to     distribute       less       than    fifty    grams       of    cocaine,     in


                                               -3-
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C).                        His plea

agreement   with    the    government       included    a   calculation     of   his

United   States    Sentencing       Guidelines    ("Guidelines")         sentencing

range ("GSR").      The agreement set Rondón's base offense level at

twelve, and included a two-level reduction for acceptance of

responsibility, resulting in a final adjusted offense level of

ten.     While the plea agreement included no stipulation as to

Rondón's Criminal History Category ("CHC"), it provided that,

should the district court deem Rondón to have a CHC of I, his

GSR would be six to twelve months of imprisonment.                   The parties

agreed that Rondón could request a sentence at the lower end of

the applicable range, while the government reserved the right to

recommend any sentence within the GSR.                 Rondón remained on bail

pending sentencing with Rodríguez as his third party custodian.

            On    November    30,    2016,     Rodríguez     alerted      the    U.S.

Probation Office, via letter, that she no longer wanted to be

Rondón's third party custodian because she had "decided to end

the    strained    relationship      with    [him]."        The   same    day,   the

probation officer filed with the court an informative motion to

this same effect.         On December 19, 2016, Rodríguez was shot and

killed while driving in Guaynabo, Puerto Rico.                     The probation

officer filed another informative motion that same day to inform

the court of her death.


                                       -4-
            On December 21, 2016, the U.S. Probation Office filed

its PSR with the district court.                 Like the plea agreement, it

determined that Rondón's offense level was twelve pursuant to

U.S.S.G. § 2D1.1(c)(14), and recommended a two-level reduction

for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1

(a), making Rondón's total offense level ten.                 The PSR specified

that   while     Rondón   had   no   prior       convictions,    giving      him    a

criminal history score of zero, he had been previously arrested

on four occasions.        The PSR concluded that, based on his total

offense level and CHC, Rondón's GSR was six to twelve months of

imprisonment.     Neither party filed any objections to the PSR.

            Rondón    was   sentenced       on    December    28,    2016.          At

sentencing, Rondón's counsel argued for a sentence of six months

of imprisonment, at the low end of the GSR, while the Government

asked the court to impose a sentence of twelve months.                             In

making his pitch, his defense counsel emphasized that, as a

result of Rodríguez's death, Rondón would now be the lone parent

to his three children. He also pointed to Rodríguez's statements

to   probation    when    interviewed   for       the   PSR   that   Rondón        was

dedicated to his children and requesting that the court show

leniency.      The sentencing court responded that Rodríguez had

informed the probation office prior to her death that she no

longer wanted to be Rondón's third party custodian "because of


                                      -5-
verbal    and    physical        threats       and    violence           displayed     by    this

defendant against her.             There is a written letter to that effect

in the hands of the Probation Officer, which is consistent with

the alleged charges of domestic violence that were [previously]

charged."       For his part, Rondón's attorney claimed that he was

"not privy" to the specific information contained in Rodríguez's

letter.

               The     court      then     discussed             the      circumstances           of

Rodríguez's      murder,        relayed    to    it        by    the     probation     officer,

noting that Rodríguez brought the children to Rondón's mother's

house    "at    his       request,"      and    then,       after        Rondón     "asked       her

specifically         to    go    and     pick        the        children       up[,]   .     .     .

coincidentally         she      [was]    killed       as        she    was     close    to       the

residence. . . .             She was murdered on her way to pick up the

children."           Rondón's     attorney      responded             that    the   details      of

Rodríguez's death were "news to [him]," and that he "[didn't]

see that information."             He did, however, acknowledge that he was

aware that Rodríguez had asked to be removed as Rondón's third

party custodian, and that the PSR contained information that she

was murdered while driving her vehicle in Guaynabo.

               Following        this      exchange,              in      support       of        its

recommendation,           the   Government       pointed           out       that   Rondón       was

selling drugs and possessed ammunition in the same apartment in


                                               -6-
which he lived with his kids and now-deceased wife.                  The court

then adopted the GSR as calculated in the PSR, but noted that it

"ha[d] its qualms" about whether those guidelines "accurately

reflect[ed] the components of the offense."              After highlighting

some of the 18 U.S.C. § 3553 factors, including Rondón's age,

dependents,     education      and   employment     history,    health,    and

substance use, the court began its dissection of Rondón's arrest

history.      The court noted that "[t]his is Mr. Rondón's fifth

arrest and first conviction," and that he had been previously

arrested   for     violations        of     controlled   substances       laws,

explosives laws, weapons laws, and domestic violence.1               The court

proceeded to discuss each of the prior charges, summarizing the

allegations as written in the PSR, despite the fact that all

were dismissed for lack of probable cause or for speedy trial

violations.

           As    the   court    recited     the   accusations   of    Rondón's

dismissed 2010 domestic violence charges -– which stemmed from

alleged abuse of Rodríguez -– the court drew a parallel between

the 2010 allegations and the allegations purportedly contained


1  In his four previous arrests, Rondón was charged with nine
separate offenses. Five of these counts were dismissed after no
probable cause was found, and the remaining four were dismissed
for violations of Rules 64 or 247 of the Puerto Rico Rules of
Criminal Procedure -- which are related to speedy trial
violations. See P.R. R. Crim. P. 64, 247.


                                      -7-
in Rodríguez's letter requesting to withdraw as Rondón's third

party    custodian.           Specifically,       the    court    stated     that     the

alleged violence resulting in the 2010 charge was the "[s]ame

information she conveyed in 2016 shortly before she was killed[,

a]t the time that she was requesting to be relieved as third

party custody [sic]."             At the conclusion of its recitation, the

court stated, "[T]his is not strange that the State system will

fail to carry over in cases such as this, and this is the reason

why this defendant has the fifth known arrest and the first time

that he is convicted is here."                   The court moved on to discuss

the   nature     of    the    offense     in    the   current     case,    finding     it

troubling that Rondón was selling drugs from the residence where

he    lived    with     three     young    children.           Finally,     the    court

considered       the    dangers     to    the    community      that    drug      dealing

creates and the violence that is commonly associated with it.

              Summing        up   its     considerations,         the     court       then

explained:

         [A] departure is warranted and reasons I already
         stated are on the record.    More so pointing as to
         the sale of drugs and the violent conduct of this
         defendant and the sale of drugs and keeping drugs in
         a house and ammunition where there were minors, and
         what appears to be his violent tendencies.

Ultimately, the court sentenced Rondón to an upwardly variant

sentence of eighteen months of imprisonment.                       In its statement

of    reasons,    the    court     indicated      that    it     departed      from   the

                                           -8-
Guidelines      because         of    "Criminal          History      Inadequacy"         and

"Aggravating/Mitigating              Circumstances."             This      timely     appeal

followed.

                                     II.    Discussion

             "Appellate        review       of    federal      criminal       sentences    is

characterized         by   a     frank       recognition        of    the      substantial

discretion vested in a sentencing court."                             United States v.

Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013).                              This Court

reviews preserved challenges to the reasonableness of sentencing

decisions under an abuse of discretion standard.                            United States

v. Santiago-González, 825 F.3d 41, 48 (1st Cir. 2016); see also

Gall v. United States, 552 U.S. 38, 46 (2007).                             Our review is

limited to determining whether the district court's sentencing

determinations were reasonable.                       Gall, 552 U.S. at 46.             When

conducting that review, we first determine whether a sentence is

procedurally      reasonable          and        then,    if    it    is      procedurally

adequate,    evaluate          its   substantive         reasonableness.             Flores-

Machicote, 706 F.3d at 20.

A.   Procedural Reasonableness of Rondón's Sentence

             We review the district court's method for arriving at

a    sentence    to    ensure        that    the       court    did     not    commit     any

"significant procedural error."                   Gall, 552 U.S. at 51.             Examples

of    this      include        "failing          to     calculate       (or     improperly


                                             -9-
calculating) the [GSR], treating the Guidelines as mandatory,

failing to consider the [18 U.S.C.] § 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."                      Flores-Machicote,

706 F.3d at 20 (alterations in original) (quoting Gall, 552 U.S.

at 51).        When a defendant fails to object to the procedural

reasonableness        of    a     court's     sentencing      determinations          at

sentencing, we review only for plain error.                    Santiago-González,

825 F.3d at 49 n.10; see also United States v. Cortés-Medina,

819 F.3d 566, 569 (1st Cir. 2016).                "Plain error review is not

appellant-friendly. It 'entails four showings: (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.'"                   Cortés-Medina, 819 F.3d

at 569 (quoting United States v. Duarte, 246 F.3d 56, 60 (1st

Cir. 2001)).      Both parties agree that plain error is the correct

legal framework for this Court to employ here, as Rondón did not

object    to   his   sentence      on    procedural     or   substantive         grounds

before the district court.               With this standard in mind, we turn

to the arguments.




                                          -10-
              Rondón's primary contention is that his sentence was

procedurally        flawed       because       the     sentencing      court     relied     on

impermissible           and   prejudicial       factors.          Specifically,         Rondón

raises      two    errors:       that    the   court     gave     undue    weight      to   its

speculation of the circumstances surrounding Rodríguez's murder,

and    that       the    court    improperly          considered     his       prior    arrest

record.       We will address each in turn, but we begin with the

principles.

              When fashioning the appropriate sentence, a court must

consider          numerous        factors,           including:      the       nature       and

circumstances of the offense and the history and characteristics

of    the    defendant;       the   need       for    the   sentence      to    reflect     the

seriousness of the offense and promote respect for the law, to

provide deterrence, to protect the public, and to provide the

defendant with needed training and care; the kinds of sentences

available; the established sentencing range; and the need to

avoid disparities in sentencing.                        18 U.S.C. § 3553(a)(1)-(4),

(6).        In so doing, "[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."                      18 U.S.C. § 3661.            During a

sentencing hearing, neither the Federal Rules of Evidence nor

the    Sixth       Amendment's          confrontation       clause     applies,         United


                                               -11-
States v. Bramley, 847 F.3d 1, 5 (1st Cir. 2017), and thus "the

sentencing court has broad discretion to accept hearsay evidence

at sentencing so long as the court supportably concludes that

the   information     has    sufficient         indicia    of   trustworthiness."

United States v. Rodríguez, 336 F.3d 67, 71 (1st Cir. 2003).

            Yet, this discretion is not boundless and must comply

with due process considerations and the parameters of Federal

Rule of Criminal Procedure 32.            Bramley, 847 F.3d at 5; see also

Betterman   v.    Montana,    136    S.    Ct.    1609,    1617      (2016)    ("After

conviction,   a   defendant's       due    process    right     .    .   .    is    still

present.    He retains an interest in a sentencing proceeding that

is    fundamentally    fair.").           Due    process    requires         that     the

defendant   be    sentenced    on    information      that      is    not     false    or

materially inaccurate.        United States v. Curran, 926 F.2d 59, 61

(1st Cir. 1991).       A sentencing court may consider both charged

and uncharged conduct of the defendant, but only if proven by a

preponderance of the evidence.              United States v. González, 857

F.3d 46, 59 (1st Cir. 2017); see also United States v. Lombard,

72 F.3d 170, 176 (1st Cir. 1995).                The defendant must be given

adequate notice of those facts prior to sentencing and the court

must "timely advise[] [the defendant] . . . that it heard or

read, and was taking into account [those facts]."                     United States

v. Acevedo-López, 873 F.3d 330, 341 (1st Cir. 2017) (second


                                      -12-
alteration in original) (quoting United States v. Berzon, 941

F.2d 8, 21 (1st Cir. 1991)).              "[A] defendant must be provided

with    a   meaningful     opportunity         to   comment      on   the   factual

information on which his or her sentence is based," Berzon, 941

F.2d at 10, unless that information "fall[s] within the garden

variety     considerations      which    should     not   generally    come    as   a

surprise to trial lawyers who have prepared for sentencing."

United States v. Pantojas-Cruz, 800 F.3d 54, 61 (1st Cir. 2015)

(internal quotation marks).

       1.   Ex Parte Communication

             Rondón's first claim relies on the sentencing court's

discussion of the circumstances surrounding Rodríguez's murder,

which Rondón argues amounts to an insinuation by the court that

he was somehow involved and responsible.                    Citing due process

concerns with the court's consideration of supposedly unreliable

information, Rondón declares that "[t]he court's tacit innuendo

was prejudicial and founded on speculation and improperly before

the court."       Rondón points to the district court's references to

information contained in Rodríguez's letter to probation, and to

the fact that Rodríguez was allegedly on her way to pick up the

children from his mother's house at Rondón's request when she

was    murdered    close   to   the     residence.        This   information    was

relayed to the court by probation, and, according to Rondón, was


                                        -13-
not provided to him in the PSR or in either of the informative

motions the probation officer filed.

            As      a    threshold    matter,        the     government      argues       that

Rondón   has     failed      to     explain    why     it     was    improper       for    the

district court to consider the letter and thereby has waived

that argument.          We disagree.       Before the sentencing court and in

his opening brief, Rondón and his counsel repeatedly proffered

that only the court and probation were privy to both the letter

submitted      by       Rodríguez    and    information         that       the     probation

officer gave to the court pertaining to Rodríguez's death.                                When

the sentencing court first discussed Rodríguez's November 2016

letter, the following exchange took place:

         [DEFENSE]: I am not privy to that information.
         Whatever information she gave to the Probation
         Officer I know about but that information has never
         been notified to me.

         THE COURT: But you heard                    about    that       through   the
         motion that was filed.

         [DEFENSE]:    But            it      only     says         an     estranged
         relationship.

         THE COURT: The letter alludes that she can no longer
         act as the third party custody [sic], that the
         residence belongs to her, that she has it rented and
         all of the belongings in there belong to her and he
         has been physically and verbally abusive and violent
         and she can no longer hold on to the situation.

         [DEFENSE]: Well, I have no                        information       to    say
         whether that is true or false.



                                           -14-
Further, after the sentencing court relayed information that it

learned    from   the   probation    officer    about    Rodríguez's   death,

counsel responded:

          [DEFENSE]: That is news to me.

          THE COURT: She was murdered on her way to pick up
          the children.

          [DEFENSE]: But I don't see that information.

          THE COURT: I am giving you the information, but the
          Presentence Report contains the information that she
          was killed on December 19 in Guaynabo.

          [DEFENSE]: And she notified the Probation Officer
          that she did not want to continue as third party
          custody [sic], that I knew.

          THE COURT: The new information is the one that the
          Probation Officer obtained concerning the fact that
          she had been requested to go in the morning hours to
          pick up the children and that is when she gets
          killed.

          [DEFENSE]: That I cannot argue, Your Honor.

The very crux of Rondón's argument is that this information was

improperly before the sentencing court due to its unreliable

nature, and the fact that he had not been informed of it in

advance of sentencing.         Therefore, while the claim is subject to

plain error review for Rondón's failure to object, we do not

find the argument waived.

            Moreover,    the    government     insists   that   all    of   the

factual    information    relevant    to    sentencing    was   disclosed   to

Rondón, and that he had a reasonable opportunity to comment.

                                     -15-
But, while the informative motions and the PSR filed by the

probation officer stated that Rodríguez requested to withdraw as

Rondón's third party custodian because she "decided to end her

strained    relationship       with       Mr.    Rondón-García,"      none     of   these

filings     contained   information             that   the   third-party-withdrawal

request was made due to allegations of physical or verbal abuse.

The letter to probation was never itself entered into the record

and    those    facts   were    not       incorporated       into   the    PSR.       Cf.

Acevedo-López, 873 F.3d at 341 (finding no lack of notice where

a summary of the incident at issue was contained in PSR and the

challenged portions of the defendant's detention hearing were

part   of   the    record).      We       also    note   that   the      PSR   contained

information that Rodríguez was shot in the head while driving

her vehicle on December 19, 2016, in Guaynabo, but contained

nothing suggesting Rondón's potential involvement in her murder,

a possibility that the sentencing court implied.

               A sentencing court using documents outside of the PSR,

and that are therefore not subject to Federal Rule of Criminal

Procedure 32, "should either make clear that the document is not

being used for its factual content, or should disclose to the

defendant as much as was relied upon, in a timely manner, so as

to    afford    the   defendant       a    fair    opportunity      to    examine     and

challenge it."        Acevedo-López, 873 F.3d at 342 (quoting Curran,


                                           -16-
926   F.2d      at   63).        While   we   have   recognized         the   sentencing

court's right to consult ex parte with a probation officer to

receive    advice,         "if   the   probation     officer      reveals     new   facts

relevant     to      the    sentencing     calculus,      those    facts      cannot   be

relied upon by the sentencing court unless and until they are

disclosed to the parties and subjected to whatever adversarial

testing may be appropriate."              Bramley, 847 F.3d at 7.               Providing

new factual information in response to a defendant's sentencing

argument does not provide the defendant "a fair opportunity to

examine and challenge it."               Id. at 6 (quoting Curran, 926 F.2d

at 63); see also Berzon, 941 F.2d at 10; U.S.S.G. § 6A1.3(a).

Here, as noted above, the evidence challenged is absent from the

record and was not provided prior to the sentencing hearing.

Given the court's discussion of the evidence and its explanation

that its departure from the GSR was based, at least in part, on

the defendant's "violent conduct" and "violent tendencies," the

record suggests that the allegations of abuse were at least a

factor     in     its      sentencing    calculus.         Coupled       with     defense

counsel's       repeated      rejoinders      that   he   had     not    been   provided

notice of the information, we find the failure to provide this

factual information to the defendant to be erroneous.

             Further, without more, we cannot say this information

had a sufficient indicia of reliability to meet the requisite


                                           -17-
preponderance of the evidence standard.                     While hearsay is both

an     acceptable    and     often     important      part       of   the   sentencing

process, see Acevedo-López, 873 F.3d at 340; United States v.

Hankton, 432 F.3d 779, 780-90 (7th Cir. 2005), and the court may

use    dependable     information       even    if    not       subjected   to    cross-

examination, United States v. Cintrón-Echautegui, 604 F.3d 1, 6

(1st Cir. 2010), a defendant must have "notice prior to its use

and . . . the opportunity to challenge its reliability."                          United

States v. Cruz, 120 F.3d 1, 2 (1st Cir. 1997).                          As previously

noted, the allegations of physical and verbal abuse contained in

the letter were not previously provided to the defendant, nor is

there     anything      in     the     record        corroborating          these     new

allegations.        Cf. United States v. Ramírez-Negrón, 751 F.3d 42,

52 (1st Cir. 2014) (hearsay testimony contained adequate indicia

of reliability when accompanied by agent's personal observations

and knowledge).         Nor can we say that Rodríguez's letter was

"thorough    and     replete    with    details"       without        the   benefit   of

seeing the letter.           Rodríguez, 336 F.3d at 71.                As to the fact

that    Rodríguez     and     Rondón    coordinated         a    drop-off    of     their

children prior to her death, while the district court stated

that it was alerted to the information by the probation officer,

the record is unclear as to where the probation officer obtained

this information.           More importantly, Rondón was only told of


                                         -18-
this information at sentencing and was not given a meaningful

opportunity    to    challenge    the    reliability   of   this   unfavorable

information.        See United States v. Zavala-Martí, 715 F.3d 44,

55-56 (1st Cir. 2013).           Use of this information constituted a

clear error of law.2

             Rondón must make it past two additional hurdles of

plain error review.           Finding that a claimed error affected a

defendant's substantial rights requires a showing that, there is

"a reasonable probability that, but for the error, the district

court would have imposed a different, more favorable sentence."

United States v. Perazza-Mercado, 553 F.3d 65, 78 (1st Cir.

2009) (quoting United States v. Gilman, 478 F.3d 440, 447 (1st

Cir. 2007)).3       We have before us not a run-of-the mill within-

guidelines sentence, but rather an upward variance not requested

by the Government.       In its statement of reasons, the court noted

that   its    basis     for    the      departure   was     the    "aggravating


2  Rondón also raises an insufficiency of the evidence argument,
positing that "there was no evidence to assume that [he] was
responsible for [the] murder."    However, as we have found the
use of this information to be improper on both notice and
reliability grounds, we need not address his sufficiency-of-the-
evidence argument at this time.
3    We have applied the "reasonable probability" test in
sentencing "departure" cases, see, e.g., United States v.
Wallace, 461 F.3d 15, 44 (1st Cir. 2006), and in cases like this
one in which a "variant" sentence was imposed, see, e.g., United
States v. Rivera-González, 809 F.3d 706, 712 (1st Cir. 2016).


                                        -19-
circumstances      of     the     offense"       and     its   belief        that    the

defendant's criminal history category was underrepresented in

prior cases in state court.              It is clear from our review of the

sentencing transcript, see United States v. Vásquez-Martínez,

812 F.3d 18, 23-24 (1st Cir. 2016) (stating that an appellate

court can make reasonable inferences from the district court

record),    that    those       aggravating      circumstances        to   which     the

sentencing court was referring include the fact that Rondón was

keeping and selling drugs in a house where minors were present,

that Rondón had ammunition in the house and was seen carrying a

firearm,    and    the    prevalence       of    "drug    point[s]"        within    the

metropolitan      area   of     Puerto    Rico.        However,      the   court    also

expressly    stated      that    it   relied      on   "all    of    the[]    factors"

previously discussed, which included -- at great length -- the

improperly admitted information.

            But even assuming that the district court would have

imposed a more favorable sentence, our discretionary correction

of the error in this case is not warranted. See United States v.

González-Castillo, 562 F.3d 80, 84 (1st Cir. 2009) (exercising

discretion to correct plain error where "fairness of appellant's

sentence was impaired"); United States v. Mangone, 105 F.3d 29,

36   (1st   Cir.   1997)      ("Our      final    step   in    the    [plain    error]

analysis is to determine whether we should, in our discretion,


                                          -20-
order correction of this plain error that affects substantial

rights."    (citing      United   States   v.   Olano,   507   U.S.   725,   735

(1993))).       While the error that occurred at Rondón's sentencing

arguably affected the fairness, integrity, or public reputation

of the judicial proceeding, see Mangone, 105 F.3d at 36, there

are at least two considerations that suggest that we should not

intercede.       First, although Rondón belatedly acknowledges the

applicability of the plain error standard in his reply brief, he

makes no argument addressing this fourth prong of that standard,

a failure which is itself sufficient to ground our declining to

exercise our discretion to correct the error.              See, e.g., United

States v. Steed, 879 F.3d 440, 452 (1st Cir. 2018).                   Moreover,

with respect to the fourth prong, a simple calculation reveals

that   Rondón     has    nearly   completed     the   community   corrections

center portion of his incarcerative sentence and is about to

begin his statutorily-mandated period of supervised release.                  We

believe it most unlikely that the district court on remand would

adjust the period of Rondón's transitional incarceration at this

late juncture.          Cf. Wallace, 461 F.3d at 44 (noting that the

district court "might (although by no means must) calculate a

[different] sentence upon remand").             Accordingly, while we find

that the district court should have provided Rondón notice of

its    intent    to   use   the   ex   parte    information    obtained      from


                                       -21-
probation and allowed him an opportunity to rebut it, we choose

not to intervene.4

      2.   Rondón's Arrest Record

              Rondón next objects to the court's use of his prior

arrests as a basis for its variance from the GSR, claiming that

the   court    clearly    assumed   the     allegations   underlying   those

arrests to be true.          As all prior charges against him were

dismissed,     Rondón    claims   that   the   district   court   lacked   any

reliable, factual grounds to justify its consideration of those

arrests, and that the underlying allegations failed to meet the

preponderance of the evidence standard.

              Rondón cannot demonstrate that it was plain error for

the court to reference his prior arrests.            The Guidelines state

that "prior similar adult criminal conduct not resulting in a

criminal conviction" may form the basis for an upward departure

from the guideline range, but that a "prior arrest record itself

shall not be considered for purposes of an upward departure


4   We take this opportunity, however, to encourage appellate
counsel to inform us of the stakes early during the appellate
process in appropriate cases.    In a case in which counsel has
identified a potentially serious sentencing error affecting a
sentence that is likely to be served prior to the completion of
the appellate process, a motion to expedite briefing and
consideration is not unwelcome. Cf. Burns v. United States, 501
U.S. 129, 154 n.7 (1991) (Souter, J., dissenting) (identifying
appellate difficulties for defendants serving modest sentences
after erroneous sentencing decisions).


                                     -22-
under this policy statement." U.S.S.G. § 4A1.3(a)(2)(E), (a)(3).

Further, this Court has stated that a district court may rely on

the information contained in a PSR at sentencing:

          "Generally, a PSR bears sufficient indicia of
          reliability to permit the district court to rely on
          it at sentencing."    United States v. Taylor, 277
          F.3d 721, 724 (5th Cir. 2001).     The defendant is
          free to challenge any assertions in the PSR with
          countervailing evidence or proffers, in which case
          the district court is obliged to resolve any genuine
          and material dispute on the merits.      But if the
          defendant's objections to the PSR are merely
          rhetorical and unsupported by countervailing proof,
          the district court is entitled to rely on the facts
          in the PSR.

United    States   v.      Olivero,   552    F.3d      34,    40   (1st    Cir.   2009)

(quoting    United    States     v.   Cyr,       337   F.3d   96,    100   (1st    Cir.

2003)).      Here,      the    district     court      invoked      Rondón's      arrest

history as contained in his PSR, to which Rondón did not object.

Moreover,    his     PSR      contained     detailed     facts      underlying      the

individual charges listed in his arrest record.                     This failure to

object constitutes a waiver of Rondón's right to challenge the

information contained in the PSR.                See United States v. Serrano-

Mercado, 784 F.3d 838, 847-48 (1st Cir. 2015); United States v.

Turbides-Leonardo, 468 F.3d 34, 37-38 (1st Cir. 2006); see also

United States v. Ocasio-Cancel, 727 F.3d 85, 91-92 (1st Cir.

2013) (stating that, when the defendant did not object to the

PSR's discussion of dismissed charges against him, "the district

court may treat the fact as true for sentencing purposes.").

                                          -23-
              This Court, however, has recently cautioned district

courts against using arrests not resulting in convictions to

speculate about or infer unlawful behavior unless there is proof

by a preponderance of the evidence of the conduct initiating

these    arrests   or    charges.      Cortés-Medina,       819   F.3d   at    570

("Today, we caution district courts against placing weight on

such speculation.").        See also United States v. Gallardo-Ortiz,

666 F.3d 808, 815 (1st Cir. 2012) ("We have cautioned against

district      courts   relying   on   mere   arrests   as    indicative       of    a

defendant's character to justify an upward departure from the

GSR since a criminal charge alone does not equate with criminal

guilt of the charged conduct.").             And here, the district court

clearly did give Rondón's criminal history weight, methodically

discussing the entries of his arrest record, concluding that

"this is not strange that the State system will fail to carry

over in cases such as this, and this is the reason why this

defendant has the fifth known arrest and the first time that he

is convicted is here."           Further, the district court proclaimed

that    the   defendant's   criminal    history   category,       involving        no

prior convictions, underrepresented his past wrongdoing.                      "[A]

court imposing incarceration for a later crime cannot simply

presume that past charges resolved without conviction . . . are

attributable to flawed or lax prosecutorial or judicial systems


                                      -24-
rather than the defendant's innocence."               Cortés-Medina, 819 F.3d

at 576-77 (Lipez, J., dissenting).

           But, Rondón's argument once again must succumb to the

heavy   burden    of    plain   error    review.       In    United    States    v.

Delgado-Sánchez,       while    acknowledging       that    "when    the   occasion

presents itself, we very well may sustain a preserved challenge

to a sentence that treats arrests as proof of unlawful conduct,"

we found that "[the defendant's] plain-error appellate challenge

provides no such occasion."             849 F.3d 1, 13 (1st Cir. 2017).

Plain error review requires us to reverse only where a lower

court's error is clear or obvious in light of the prevailing

law, but "Cortés-Medina held only that the law on this question

was   unclear."        Id.     Thus,   while   we    once    again    express   our

distaste for a district court's reliance on a defendant's record

of prior arrests and charges without convictions, we find that

the court's use of the purported criminal conduct underlying

Rondón's criminal charges, to which he did not object, did not

amount to clear error.           Rondón's second claim must suffer the

same fate as his first.

           We hold that, on plain error review, the procedural

errors in Rondón's sentence do not warrant reversal.                       We move

next to Rondón's claim of substantive unreasonableness.




                                       -25-
B.   Substantive Reasonableness of Rondón's Sentence

               Rondón    also   did    not   preserve    his       substantive

reasonableness claim below.           Because the standard of review for

unpreserved challenges to the substantive reasonableness of a

sentence remains unclear, we will give Rondón the benefit of the

doubt and review under the more favorable abuse of discretion

standard.       See United States v Ruiz-Huertas, 792 F.3d 223, 228

(1st Cir. 2015).

               "[S]ubstantive    unreasonableness   encompasses       whether

the sentence survives scrutiny when examined under the totality

of   the      circumstances."      Santiago-González,    825   F.3d    at   48

(citing United States v. Del Valle-Rodríguez, 761 F.3d 171, 176

(1st Cir. 2014)).         A sentence is substantively reasonable if it

rests    on    "a   plausible   sentencing   rationale   and   a   defensible

result."       United States v. Martin, 520 F.3d 87, 96 (1st Cir.

2008).        "'[S]entencing becomes a judgment call' involving an

intricate array of factors."           Flores-Machicote, 706 F.3d at 21

(quoting Martin, 520 F.3d at 92).             We only reverse where the

sentence is outside of the "expansive universe of reasonable

sentences."         United States v. King, 741 F.3d 305, 308 (1st Cir.

2014).

               Rondón claims that the court "gave substantial weight

to invalid, unsubstantiated grounds to enhance [his] sentence."


                                      -26-
As noted above, see supra Part II(A)(1), some of the grounds

upon     which    the   court    relied       during     sentencing       were     indeed

invalid.       However, the record shows that the district court also

relied    on     several   aggravating        circumstances        supported       by   the

record in imposing its upward variance.                        The district court

pointed to Puerto Rico's drug distribution problem, see United

States    v.     Zapata-Vázquez,        778    F.3d    21,    23   (1st     Cir.    2015)

("[T]he        sentencing       court     may         take    into     account          the

characteristics of the community in which the crime took place

when weighing the offense's seriousness . . ."), the nature of

the    charged     offense,     the     fact    that     Rondón      kept    drugs      and

ammunition in his home where his three children lived, and the

presence of paraphernalia indicating that this was not a single

incident.         The   district      court    weighed       the   18 U.S.C.       § 3553

factors, highlighting Rondón's age, education, health, substance

use, and possession of a firearm.                     Setting aside the invalid

grounds, we find that an eighteen-month sentence would still

have been well within the universe of reasonable sentences for

this offense in light of all of the above circumstances.                            While

Rondón may disagree with the weight given to those aggravating

factors, "[w]eighing of those factors is left largely within a

sentencing       court's    discretion."         United       States    v.    González-

Rodríguez, 859 F.3d 134, 140 (1st Cir. 2017).


                                         -27-
          Finding   the   sentence   reasonable,   we   hold   that   the

district court did not abuse its discretion.

                          III.   Conclusion

          For the foregoing reasons, the sentence is affirmed.

          Affirmed.




                                 -28-
