                Not for Publication in West's Federal Reporter

          United States Court of Appeals
                       For the First Circuit


No. 17-1689

                     UNITED STATES OF AMERICA,

                                Appellee,

                                     v.

               GOODWIN VARGAS-GONZALEZ, a/k/a Gou,

                        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,
               Kayatta and Barron, Circuit Judges.


     John E. Mudd and Law Offices of John E. Mudd on brief 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 19, 2019


	
              KAYATTA,   Circuit   Judge.       Goodwin    Vargas-Gonzalez

("Vargas") pled guilty to one count of conspiracy to possess with

intent   to    distribute   controlled     substances,    in   violation   of

21 U.S.C. §§ 841(a)(1), 846, and 860.        Vargas was sentenced to 168

months' imprisonment, followed by a ten-year term of supervised

release.      Vargas challenges the reasonableness of his sentence.

For the following reasons, we affirm.

                                    I.

              Beginning at the latest in 2009 and up until March 2016,

Vargas conspired to possess with intent to distribute cocaine,

cocaine base, heroin, and marijuana in Ponce, Puerto Rico, within

one thousand feet of the Santiago Iglesias Public Housing Project

(a housing facility owned by a public housing authority), in

violation of 21 U.S.C. §§ 841(a)(1), 846, 860.1                  During the

conspiracy, Vargas was one of the leaders of a drug-trafficking

organization.       Members of the organization employed violence,

participating in shootouts and a drive-by murder.

              As one of the organization's leaders, Vargas supervised

the affairs of its drug distribution points, runners, and street

sellers, and collected rent from the proceeds of drug points.              He


     1 Because Vargas pled guilty, "we draw our account from the
plea agreement, the undisputed portions of the pre-sentence
investigation report . . . , and the transcripts of the change of
plea and sentencing hearings."      United States v. Montañez-
Quiñones, 911 F.3d 59, 61 (1st Cir. 2018), cert. denied, No. 18-
7896, 2019 WL 635196 (U.S. Mar. 25, 2019).


                                   - 2 -
also possessed firearms and allowed other conspiracy members to

possess firearms to further the conspiracy's objectives.            Vargas

acknowledged that during the span of the conspiracy, he possessed

with intent to distribute at least fifteen kilograms but less than

fifty kilograms of cocaine.

             On March 3, 2016, Vargas and thirty-nine co-conspirators

were indicted by a federal grand jury in the District of Puerto

Rico.     Vargas was charged with six counts:           (1) conspiracy to

possess     with   intent   to     distribute   controlled     substances;

(2)-(5) aiding and abetting in the possession with intent to

distribute    heroin,   cocaine,    cocaine   base,   and   marijuana;   and

(6) conspiracy to possess firearms in furtherance of a drug-

trafficking crime.      On October 6, 2016, Vargas and the government

entered into a plea agreement whereby Vargas pled guilty to one

count of conspiracy to possess with intent to distribute controlled

substances.

             As part of the plea agreement, the parties submitted

advisory Sentencing Guidelines calculations, recommending that

Vargas's Total Offense Level be set at thirty-four.          The agreement

also contained the following sentencing recommendation:

        After due consideration of the relevant factors
        enumerated in 18 U.S.C. § 3553(a), the parties reserve
        the right to recommend a sentence within a range of 151-
        168 months of imprisonment if CHC I for a total offense
        level of 34 when combined with defendant's criminal
        history category as determined by the Court.          If
        defendant is CHC II or higher, the parties agree to


                                    - 3 -
     recommend a sentence at the lower end of the applicable
     guideline range for a total offense level of 34 when
     combined with defendant's criminal history category as
     determined by the Court.    The parties agree that any
     recommendation for a term of imprisonment below the
     above stipulated will be a material breach of the plea
     agreement.

            The presentence investigation report ("PSR") largely

tracked the parties' agreed upon advisory Guidelines calculations,

with one caveat:   Instead of suggesting a 2-level enhancement for

Vargas's leadership role in the offense, the PSR recommended a 3-

level enhancement.      On Vargas's objection, the district court

stated that it would not accept the higher-level enhancement

recommendation.

            At sentencing, before hearing from the government and

before explaining the basis for the sentence, the district court

referred to the shootouts and the drive-by murder connected to the

drug-trafficking organization, stating that it hoped Vargas would

change his behavior after being released from prison.

            The government and Vargas both requested a 151-month

sentence.    The district court, however, sentenced Vargas to 168

months' imprisonment.     This sentence was at the middle of the

Guidelines range, which was 151-188 months based on a Total Offense

Level of 34 and a Criminal History Category of I.       Citing the

section 3553 factors, the district court noted the following:

     (1)    Vargas was thirty-six years       old,   with   two
     dependents, and had completed a GED;



                                - 4 -
        (2) Vargas had been unemployed for at least eight months
        prior to his arrest, had previously been a part-time
        assembly technician at a pharmaceutical business making
        minimum wage, and had worked in construction as well;

        (3) Vargas was in good physical and mental health, but
        had disclosed an "emotional situation" years prior
        related to marital problems for which he did not undergo
        any medical or mental health treatment;

        (4) Vargas used marijuana sporadically throughout his
        adult life and had tried non-prescribed Percocet on one
        occasion;

        (5) Vargas submitted to a urinalysis five days after
        being indicted which yielded negative results;

        (6)   Vargas had a prior adjudication for a weapons-
        related misdemeanor violation, which was considered
        relevant conduct;

        (7) "[R]elevant and significant [was] the seriousness
        of the offense to which [Vargas] pled guilty and the
        actions in which the organization of which he was one of
        three leaders . . . , and the dealings and manners and
        objectives of the conspiracy, along with the large
        number of members that were involved"; and

        (8) Vargas stipulated to: acting as one of the leaders
        of the drug-trafficking organization; collecting rent
        from the proceeds of drug distribution points; having
        supervisory authority over the affairs of drug points,
        runners, and street sellers of the organization; and
        possessing firearms and allowing other members of the
        conspiracy to possess those weapons to further the
        objectives of the conspiracy.

             The district court stated that it considered "all of

those    factors"   listed   above,   putting   particular   emphasis   on

Vargas's leadership role "and the significance of that role and

the overall actions of the drug trafficking organization."




                                  - 5 -
             Before   the   sentencing     hearing   concluded,   Vargas's

counsel asked the district court to reconsider the sentence,

referencing the court's prior comments on the shootouts and drive-

by murder.     The court responded that it did "not count[] anything

regarding murders" and that it "placed that as an example of the

sad situation in which the existence of rival gangs that engage in

shootings     sometimes     have   sad     consequences     for   innocent

bystanders."     When pressed, the district court stated:

     I think that I have made reference to what I clearly
     considered in sentencing the defendant within the
     guidelines.   But if I considered any specific act of
     violence or murder I would have gone over the guidelines.
     Actually I am not considering that type of situation.
     The government here mentioned three different leaders
     and she said, the government said that and what I limited
     my findings were and I read precisely in the stipulated
     Version of Facts that appears in the plea agreement when
     he stipulated to everything that I considered in
     imposing the sentence and which I read on the record.
     Reconsideration denied.

             This appeal followed.

                                     II.

             Vargas takes issue with his sentence.2       Specifically, he

argues that the sentence is unreasonable because: (1) the district

court did not sufficiently discuss the section 3553(a) factors;




     2 Though Vargas's plea agreement contains an appellate waiver
that Vargas argues is inapplicable, "[w]e have not . . . explored
that terrain here" because the government does not argue that
Vargas's appeal is barred by the waiver and has therefore "waived
any application of the appeal waiver." United States v. Caramadre,
807 F.3d 359, 377 n.9 (1st Cir. 2015).


                                   - 6 -
(2) the court's judgment was influenced by activities connected to

the drug-trafficking organization with which Vargas himself had no

connection;     and   (3) the   court    used    Vargas's    organizational

leadership and use of firearms and drugs to "further punish

[Vargas] by sentencing [him] to the very highest level when the

recommendation at sentencing was 151-months."3

          We    begin   first   with    an   analysis   of   the   procedural

reasonableness of the sentence imposed.             See United States v.

Owens, 917 F.3d 26, 41 (1st Cir. 2019) ("First, we ensure the

district court did not commit any procedural errors, such as

'failing to consider the section 3553(a) factors, selecting a

sentence based on clearly erroneous facts, or failing to adequately

explain   the    chosen   sentence.'"        (quoting   United     States   v.

Gierbolini-Rivera, 900 F.3d 7, 12 (1st Cir. 2018))).             A sentencing

court certainly has a duty to consider the section 3553(a) factors,

but it "need not do so mechanically," United States v. Cortés-

Medina, 819 F.3d 566, 571 (1st Cir. 2016) (quoting United States




     3 Though Vargas does not characterize his arguments as such,
the government asserts that we should treat them as challenges to
the procedural reasonableness of the district court's sentence.
Out of an abundance of caution, we will review both the procedural
and substantive reasonableness of the district court's sentence.
To the extent that the proper standard of review for unpreserved
substantive reasonableness claims "remains an open question in our
circuit," United States v. Cruz-Olavarria, No. 17-1761, 2019 WL
1375035, at *3 n.5 (1st Cir. Mar. 27, 2019), we note that all of
Vargas's challenges -- procedural and substantive -- fail even
under review for abuse of discretion.


                                  - 7 -
v. Clogston, 662 F.3d 588, 592 (1st Cir. 2011)), nor must it "walk,

line by line, through [those] factors," id. (citing United States

v. Dixon, 449 F.3d 194, 205 (1st Cir. 2006).                 In that vein, this

court has "warned against 'read[ing] too much into a district

court's failure to respond explicitly to particular sentencing

arguments.'"      Id. (quoting Clogston, 662 F.3d at 592 (alteration

in original)).

              The district court began by generally referring to the

section 3553(a)        factors.      It   then      considered     Vargas's   age,

dependents, education, employment, physical and mental health,

drug use, and criminal history.           The court also took into account

the nature and circumstances of the offense, discussing the size

of the conspiracy, Vargas's leadership role, the conspiracy's drug

distribution objectives, and the use of firearms as a means of

accomplishing     those    objectives.        We    easily   find    the   court's

explanation      and    discussion     of     the    section 3553(a)       factors

sufficient, particularly given that the sentence was within the

Guidelines range.         See Clogston, 662 F.3d at 592 ("[S]uch a

sentence requires less explanation than one that varies from the

[Guidelines range].").        That Vargas may wish that the district

court had weighed the section 3553(a) factors differently is not

enough   to    warrant     vacating    his    sentence;      the    balancing   of

sentencing factors "is precisely the function that a sentencing

court is expected to perform."            United States v. Ledée, 772 F.3d


                                      - 8 -
21, 41 (1st Cir. 2014) (quoting United States v. Suárez-González,

760 F.3d 96, 102 (1st Cir. 2014)); see also Clogston, 662 F.3d at

593 ("[T]he weighting of [the section 3553(a)] factors is largely

within the court's informed discretion.").

          Vargas's claim that the district court improperly relied

on the conspiracy's connection to shootouts and the drive-by murder

is belied by the record.    When asked whether it had factored in

these violent events, the court responded that it did "not count[]

anything regarding murders" and that it referenced them "as an

example of the sad situation in which the existence of rival gangs

that engage in shootings sometimes have sad consequences for

innocent bystanders."     The district court repeated itself when

Vargas's counsel asked again for reconsideration of the sentence,

saying that it did not consider those acts of violence and that it

"limited [its] findings" when imposing the sentence.        Vargas

provides no persuasive basis for us to discredit the district

court's statements. The court referred to the shootouts and drive-

by murder before it imposed and explained Vargas's sentence and

made no reference to those acts when it identified and considered

the section 3553(a) factors.   On this record, we need not decide

whether the district court had a sufficient basis to attribute

those events to Vargas.

          To the extent that Vargas challenges the sentence's

substantive reasonableness, he again engages in a losing battle.


                               - 9 -
This court will "find a sentence substantively reasonable 'so long

as   the   sentencing     court      has    provided      a    plausible    sentencing

rationale and reached a defensible result.'"                     Owens, 917 F.3d at

41 (internal quotations omitted) (quoting Gierbolini-Rivera, 900

F.3d at 12).      And because the district court sentenced Vargas

within the applicable Guidelines range, the sentence is entitled

to a "presumption of reasonableness."                  United States v. Ortíz-

Mercado, No. 17-1383, 2019 WL 1416620, at *3 (1st Cir. Mar. 29,

2019).

             Vargas has not sufficiently rebutted this presumption.

Though he states that the district court "further punish[ed] him

by   sentencing    [him]        to    the     very   highest       level    when   the

recommendation at sentencing was 151-months," the district court

was not obligated to accept the parties' recommendations, as was

clearly acknowledged in the plea agreement.                       We find that the

district court's consideration of the section 3553(a) factors at

sentencing     provided     a     "plausible"        explanation      for     imposing

Vargas's    sentence    and      that       the   court       ultimately    reached   a

"defensible result."        Owens, 917 F.3d at 41 (quoting Gierbolini-

Rivera, 900 F.3d at 12).             Discerning no error, we therefore will

not "substitute [Vargas's] judgment for that of the sentencing

court."    Clogston, 662 F.3d at 593.




                                        - 10 -
                                   III.

          For   the   foregoing    reasons,   we   affirm   the   district

court's sentence.




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