          United States Court of Appeals
                     For the First Circuit

No. 14-1260

                   UNITED STATES OF AMERICA,

                           Appellee,

                               v.

                   MIGUEL VILLANUEVA LORENZO,

                     Defendant, Appellant.



          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO
         [Hon. José Antonio Fusté, U.S. District Judge]



                             Before

                  Kayatta, Lipez, and Barron,
                        Circuit Judges.



     Carlos R. Noriega on brief for appellant.
     Rosa Emilia Rodríguez-Velez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, on brief for appellee.



                       September 23, 2015
       LIPEZ, Circuit Judge.             Appellant Miguel Villanueva Lorenzo

was sentenced to 240 months' imprisonment, an upward variance from

the applicable recommended Guidelines range of 168 to 210 months,

following his guilty plea to a charge of conspiracy to possess

with       intent     to    distribute       controlled       substances.        Appellant

challenges          the    variance,     arguing       that    the    district       court

misapplied 18 U.S.C. § 3553(a) by (1) failing to take into account

his personal history and characteristics and focusing exclusively

on his criminal record, and (2) erroneously inflating his sentence

in an effort to counteract what it perceives as lax sentencing in

the    local    Puerto       Rico    court     system.        Finding       no   merit   to

appellant's contentions, we affirm.

                                              I.

       Appellant          served    as   a    leader     of    a     drug    trafficking

organization that conspired to distribute a variety of controlled

substances at El Cotto public housing project in Arecibo, Puerto

Rico.1      In his role in the conspiracy, appellant supervised the

distribution of crack cocaine, cocaine, marijuana, oxycodone, and



       1
       Since appellant pled guilty pursuant to a plea agreement,
we derive the facts from the plea agreement, the change-of-plea
colloquy,   the   unchallenged   portions  of   the   presentence
investigation report, and the sentencing hearing transcript.
United States v. Ocasio–Cancel, 727 F.3d 85, 88 (1st Cir. 2013).

                                             - 2 -
Xanax.   He received proceeds from the distribution of narcotics

and he carried firearms in order to protect the drug distribution

points at the housing project.

     In March 2013, a grand jury indicted appellant, along with

forty-four co-defendants, for: conspiracy to possess with intent

to distribute controlled substances in violation of 21 U.S.C. §§

841(a)(1), 846, and 860 (Count One); and aiding and abetting

possession   with   intent   to   distribute   cocaine   base,   cocaine,

marijuana, and heroin in violation of 21 U.S.C. §§ 841(a)(1), 860

and 18 U.S.C. § 2 (Counts Two - Five).

     In October 2013, appellant pled guilty to Count One of the

indictment pursuant to a plea agreement.        The parties stipulated

that, for sentencing purposes, appellant would be treated as having

a total offense level of 33, as determined under U.S.S.G. § 2D1.

The parties did not stipulate as to appellant's Criminal History

Category ("CHC"), but assumed he was in CHC III.         The applicable

Guidelines range was determined to be 168 to 210 months.

     The parties agreed that appellant would request a sentence of

168 months if the CHC was I, II or III, but would request the lower

end of the applicable range if the CHC was IV.           The government

reserved the right to recommend 198 months if appellant fell in

categories I through IV, and agreed to recommend the lower end of

                                  - 3 -
the applicable range if appellant fell in CHC V or VI. The court

calculated appellant's CHC as III.            After a sentencing hearing,

the district court imposed a sentence of 240 months, followed by

eight years of supervised release.

      Appellant timely appealed his sentence,2 arguing that the

district   court    erred   in   failing     to    appropriately   review   the

§ 3553(a) factors when it sentenced him to 30 months in excess of

the upper end of the applicable Guidelines range.                Specifically,

appellant argues that the district court failed to give sufficient

weight to his character and personal history, and placed undue

weight on his criminal history.         He contends that the court erred

in   failing   to   consider     that   he    is    a   "great   father"    with

"rehabilitation potential" and that he "self[-]surrendered when he

realized that the agents were looking for him."              He additionally

argues that the district court's comments during sentencing, along

with public comments the court has made in the past, suggest that

the court erroneously inflated his sentence in an effort to offset

lenient sentences imposed in the local courts.



      2Although appellant's plea agreement included a waiver of
his right to appeal, this provision is inapposite because the
district   court's   sentence    deviated   from   the   parties'
recommendations. See United States v. Fernández-Cabrera, 625 F.3d
48, 51 (1st Cir. 2010).

                                    - 4 -
                                      II.

A. Legal Principles

      We    review   federal   criminal      sentences   imposed   under    the

advisory Guidelines for abuse of discretion. Gall v. United States,

552 U.S. 38, 51 (2007); United States v. Madera-Ortiz, 637 F.3d

26, 30 (1st Cir. 2011).          Typically, our review of a sentence

imposed under the Guidelines involves a two-step process.              "First,

we evaluate the procedural soundness of the sentence; second, we

assay its substantive reasonableness."           Madera-Ortiz, 637 F.3d at

30.   The "procedural dimension" of sentencing review includes the

correctness of the court's application of the Guidelines, while

"[t]he     substantive   dimension    focuses    on   the   duration   of   the

sentence in light of the totality of the circumstances."               United

States v. Del Valle-Rodríguez, 761 F.3d 171, 176 (1st Cir. 2014).

Procedural errors amounting to an abuse of discretion include

"failing to calculate (or improperly calculating) the Guidelines

range, 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." Gall, 552 U.S. at 51.




                                     - 5 -
     Following United States v. Booker, 543 U.S. 220 (2005), we

have delineated the sequence of steps sentencing courts should

follow under an advisory guidelines regime:

          [A] sentencing court ordinarily should begin
          by calculating the applicable guideline
          sentencing range; then determine whether or
          not any departures are in order; then mull the
          factors delineated in 18 U.S.C. § 3553(a) as
          well as any other relevant considerations;
          and, finally, determine what sentence, whether
          within,   above,   or  below   the   guideline
          sentencing range, appears appropriate.

United States v. Pelletier, 469 F.3d 194, 203 (1st Cir.

2006).

     Pursuant to 18 U.S.C. § 3553(a), a sentencing court must

consider the following factors when imposing a sentence:

          (1) the nature and circumstances of the
          offense and the history and characteristics of
          the defendant;
          (2) the need for the sentence imposed--
               (A) to reflect the seriousness of the
          offense, to promote respect for the law, and
          to provide just punishment for the offense;
               (B) to afford adequate deterrence to
          criminal conduct;
               (C) to protect the public from further
          crimes of the defendant; and
               (D) to provide the defendant with needed
          educational or vocational training, medical
          care, or other correctional treatment in the
          most effective manner;
          (3) the kinds of sentences available;
          (4) the kinds of sentence and the sentencing
          range established . . .
          (5) any pertinent policy statement--

                              - 6 -
             (6) the need to avoid unwarranted sentence
             disparities among defendants with similar
             records who have been found guilty of similar
             conduct; and
             (7) the need to provide restitution to any
             victims of the offense

     When    a    sentencing    court      imposes     an   above-the-Guidelines

sentence,    "it    must   justify      the   upward    variance."      Del   Valle-

Rodríguez, 761 F.3d at 176.          An upward variance "may be justified

by, say, a finding that the defendant's criminal history score

underrepresents the gravity of his past conduct." Id.

B. Analysis

     1. 18 U.S.C. § 3553(a) Factors

     Our review of the record reveals that the district court

adequately       considered    the   §    3553(a)      factors   in    determining

appellant's      sentence,     taking     into   account     both     his   personal

history and his specific role in the conspiracy.                 When it imposed

its 240-month sentence, the court noted:

             When you look at the 3553(a) factors, and you look
             at how that section tells you that you have to
             consider the nature of the crime, the impact that
             the crime has on the community . . . how the
             disposition of the case is going to deter or not
             deter future crimes, things of the sort, all these
             factors, I'm not mentioning them one by one, all of
             them point to me the fact that when you have a
             picture like the one that I see in this Presentence
             Report, a non-guideline sentence has to be utilized
             to deal with this issue.


                                         - 7 -
        The court then added:

             I am not making a departure. I cannot tell you
             that I can find a particular departure ground,
             because I would be inventing it. I don't think
             it fits squarely into the peg holes of any
             particular    guideline     disposition    for
             departure. But I do think that when you see
             the overall picture here, he does fit the
             pattern of a potential variance to adjust the
             numbers to the reality of what the case is
             about. I will sentence him to 240 months, and
             I will place him on supervised release for
             eight years.


        In its explanation of appellant's sentence, the district

court     emphasized      appellant's    particularized    role     in    the

conspiracy, noting that he "could have easily, easily have been

portrayed as a leader, organizer, manager [of the conspiracy]

whatever you want to call it, with a lot more than two points

within the calculation.        He could have easily been determined to

be a three or a four, but he was only given a two[-level increase

for his leadership role]."

        Contrary to appellant's contention, the district court did

not     ignore    his    personal   circumstances.   Rather,      the    court

explicitly       noted   appellant's    age,   seventh   grade    education,

documented history of substance abuse beginning in his teens, lack




                                    - 8 -
of mental health issues,3 and the "grim" prospects he faced born

of two drug-addicted parents.    The court thus made clear it was

aware of appellant's personal history and characteristics. If the

court "weighed those factors less heavily than [appellant] would

have liked," that judgment was within its discretion. United States

v. Rivera-González, 776 F.3d 45, 50 (1st Cir. 2015); see also

United States v. Carrasco-De-Jesús, 589 F.3d 22, 29 (1st Cir. 2009)

(stating that a criminal defendant is entitled to a weighing of

relevant factors, "not to a particular result"); United States v.

Vega–Salgado, 769 F.3d 100, 105 (1st Cir. 2014) (stating that the

district court's statement that it had reviewed the § 3553(a)

factors "is entitled to some weight" and that "parsing through

[the § 3553(a) factors] mechanically is not" required).

     Moreover, the court did not err when it considered appellant's

criminal record.   The court stated:

          He has the convictions we mentioned, prior
          convictions for resistance, obstruction of
          public authority, second degree murder,
          attempted murder, weapons laws, controlled


     3 The district court stated: "Some people in this position
have mental problems, issues of that nature. He doesn't have that.
And in that sense, when you don't have a history of mental health
issues, you are in a sense kind of more in control of your
situation, more responsible in a sense, because you don't have the
detraction of the bad things that happen and the lack of control
that some people with mental issues and problems have."

                                - 9 -
              substances. Issues with domestic violence.
              Also the dismissals that appear here, many
              dismissals. When we went one by one, for
              controlled   substances,  aggravated   riots,
              weapons laws, first degree murder, all those
              dismissed.
                   Obviously I have to consider this
              background. Not only the prior convictions,
              but also all these things.       You have to
              consider    them,     and    quantify    them
              appropriately, carefully, because in some he
              was convicted.    In some he was not.     But
              remember that even uncharged conduct, even
              dismissed conduct can be considered, as long
              as you are careful in doing that.

        Appellant was placed in CHC III based on convictions for

resisting authority, second degree murder, attempted murder, five

weapons law violations, and two domestic violence violations.4 The

court       emphasized   that   defendant's   CHC   underrepresented   the

seriousness of his prior offenses:

              He had an issue with resisting authority,
              police officers, obstruction, et cetera, but
              he's found guilty, fined 50 bucks for
              that . . . .     Then he has a second degree
              murder conviction . . . . Was originally a
              first degree, and in plea negotiations, it was
              reduced to second degree.         And he was
              sentenced to 12 years concurrent with whatever


        4
       He was fined $50 in 1995 for his conviction for resisting
authority; he was sentenced to concurrent terms of twelve years
imprisonment in 1996 for second degree murder, five years for
attempted murder, ten years for three weapons law violations, five
years for two weapons law violations; and, in 2008, he was fined
$100 for one domestic violence conviction. The second domestic
violence violation was dismissed.

                                    - 10 -
else he had, which included an attempted
murder, for which he gets also five years
concurrent. And firearms violations for which
he gets ten years, but also concurrent.
     So basically, there are two violations,
two Article Eight of the Puerto Rico firearms
laws. Actually, not two. Three, four, five --
five firearms violations.     He gets ten in
each, and ten -- and some five. The Judge in
Arecibo packs them all together with the
murder reduced to second degree, and he is
given five in some, ten in some, the murder
12. Everything's absorbed by 12 for the
murder.
     Sounds like a pretty good deal.      If I
ever find myself in the situation of having to
respond to something like this, I will call
the lawyer he had to see whether I can get the
same deal . . . .
     So he got all these things piled up into
the murder. Then we have a domestic violence
-- one, two. He's charged. Cases were
dismissed. One was dismissed. One he got a
100 dollar fine.
     He resisted authorities by the way, also.
The same thing he did back in the first one
that we discussed. Slapped the face of Mrs.
J.D. Gonzalez, causing her to fall on the
floor, and then kicked her. This occurred in
the presence of a minor.      Also, defendant
threatened Ms. Gonzales by saying . . . I am
going to kill you whore or bitch . . . . I'm
just saying when you see a 100 dollar fine for
all this, it just seems to me like kind of out
of bounds . . . . Then we go to the other
criminal conduct . . . [v]iolation of
controlled   substances,   distribution,   and
distribution. Two cases in Arecibo, dismissed
under Rule 64, Speedy Trial Act, without
prejudice, never refiled . . . . Then he has
another   firearms   violation,   two,   which
included    brandishing     and    aiming    a


                   - 11 -
             weapon . . . dismissed under the Speedy Trial
             Act.
                  Then you have a first degree murder case
             with a violation of the firearms laws, several
             violations to the firearms laws.     This one
             also dismissed, Speedy Trial Act.

     Sentencing courts are permitted to increase a sentence based

on the nature of a defendant's criminal history where the court

finds that the defendant's criminal history is underrepresented in

the defendant's criminal history score.           Del Valle-Rodríguez, 761

F.3d at 176.        Thus, "a sentencing court may similarly consider

whether, in a series of past convictions, the punishment appears

to fit the crime.      If the court concludes that an asymmetry exists

which results in a substantial underestimation of the defendant's

criminal history, it may vary the sentence upward to reflect past

leniency."        United States v. Flores-Machicote, 706 F.3d 16, 21

(1st Cir. 2013).

     Hence, the court properly considered the relevant sentencing

factors     and    adequately   explained   the    rationale   behind   the

variance.     Accordingly, the court did not abuse its discretion in

imposing a sentence outside the Guidelines.




                                   - 12 -
     2. Statements Made During Sentencing5

     Appellant contends that a number of the district court's

statements during sentencing suggest that it erroneously inflated

appellant's sentence to "counteract or adjust what [the court]

thought was a laxity" in the Puerto Rico judicial system.      For

example, the court said the following:

          [W]here you see Presentence Report after
          Presentence Report with histories of what
          appear to be on paper horrific crimes,
          horrific crimes that in a very consequent
          manner, across the board, get this kind of
          treatment.   Something that, for example, we
          know doesn’t happen in a court of justice such
          as the District of Puerto Rico Federal Court.
               It seems to me, it seems to me – I am not
          accusing anybody of anything. It seems to me
          that perhaps the pressure of the load of work,
          the laxity, known laxity in plea negotiations,
          all these things that are happening in state
          court, give rise to this. One possibility. I
          am not saying that that is the only
          possibility.   But you cannot deny that when
          you look at a record like this, and you compare
          it with what you have seen and I have seen in
          a multitude of Presentence Reports coming out
          of matters that happen in Puerto Rico state
          court, sometimes they portray a picture that



     5 The government has failed to respond to this argument in
its brief. Indeed, it only acknowledges that appellant makes the
argument: "Villanueva avers that the court . . . can't impose a
higher sentence to counter act [sic] or adjust what the judge
believe[s] is a laxity of the local judicial system."           The
government risks losing a case it should not lose, given the record
below, with that kind of advocacy.

                              - 13 -
            is difficult to swallow, to say the least. But
            that's it. That's the record.

     We    understand   appellant's   concern.   It   would   indeed   be

inappropriate for a district court to impose a variant sentence on

a defendant because the district court regarded the manner in which

the local courts generally sentenced other persons to be too

lenient.    It is also true that a sentencing court may abuse its

discretion by focusing "too much on the community and too little

on the individual."     Flores-Machicote, 706 F.3d at 24.      However,

the fact that the court noted its perception that the local

criminal justice system is too lenient does not in and of itself

render its sentence procedurally unreasonable.         The question is

whether the court properly focused on the defendant's particular

circumstances.    Id. at 23-24 (holding that a district court did

not abuse its discretion by stating that "'local courts are

incapable of managing [gun-related cases]'" and "'[t]he word has

to spread that this Court is going to be extremely harsh with

defendants who conduct and carry out gun-related crimes'" because

it gave "individualized attention to the defendant's case").           As

evident from the language quoted in section B.1, supra, where the

court detailed the appellant's convictions in the Commonwealth

court and the sentences he received, the court was simply saying


                                - 14 -
that it viewed appellant's own criminal history as more serious

than the actual sentences received might imply given the crimes

committed.   Although the court viewed the history of sentences

that appellant received in that system as emblematic of an overall

laxity in the system, the upward variance it imposed on appellant

was in response to appellant's particular sentencing history and

not the court's perception of the local system's laxity generally.

The court imposed the sentence it felt appellant's criminal conduct

merited.   Accordingly, it did not abuse its discretion.

     Affirmed.




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