          United States Court of Appeals
                     For the First Circuit


No. 15-2127

                   UNITED STATES OF AMERICA,

                           Appellee,

                               v.

                     NEFTALÍ ALVAREZ-NÚÑEZ,

                     Defendant, Appellant.


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

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


                             Before

                  Thompson, Selya and Kayatta,
                         Circuit Judges.


     Rafael F. Castro Lang, with whom Edwin Prado Galarza was on
brief, for appellant.
     Mainon A. Schwartz, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Francisco A. Besosa-Martínez, Assistant United
States Attorney, were on brief, for appellee.



                          July 8, 2016
             SELYA, Circuit Judge. In this case, the sentencing court

confused the message with the messenger.               That led the court to

blur   the    line   between    the   artistic    expression       of        a   musical

performer     and    that   performer's     state    of     mind       qua       criminal

defendant.        Concluding,    as    we   do,     that    this       line-blurring

undermined the plausibility of the court's sentencing rationale

(and, thus, rendered the sentence substantively unreasonable), we

vacate and remand for resentencing.

I.   BACKGROUND

             Defendant-appellant Neftalí Alvarez-Núñez was arrested

in March of 2015.       The arrest took place after police observed him

discarding a handgun outside of a bar in Cataño, Puerto Rico. When

retrieved and examined, the handgun proved to be loaded, fitted

with   an    extended   magazine,     and   modified       to   fire    as       a   fully

automatic weapon.       A subsequent search revealed two other items of

interest: the defendant was in possession of a large quantity of

ammunition and a half-dozen Percocet tablets, for which he lacked

a prescription.       The defendant later told investigators that, in

addition to being a regular marijuana user, he had been addicted

to Percocet, a controlled substance, for roughly two years.

             In due course, the defendant pleaded guilty to a two-

count federal indictment charging him with possession of a firearm

and ammunition by an unlawful user of a controlled substance, see

18 U.S.C. § 922(g)(3), and possession of a machinegun, see id.
                                      - 2 -
§ 922(o).    Following the plea, the probation department prepared

a   presentence    investigation       report     (the   PSI   Report)   that

contained,   in   its   section   on    offense    conduct,    a   surfeit   of

information about the defendant's musical pursuits.            Of particular

pertinence here, the PSI Report noted that the defendant, under

the stage name "Pacho," formed part of a musical group known as

"Pacho y Cirilo." The Report further indicated that Pacho y Cirilo

was "fairly known" in the locale where the defendant was arrested,

including within the Juana Matos Public Housing Project (JMPHP).

It went on to state that "[t]he majority of the songs recorded by

Pacho y Cirilo promote violence, drugs and the use of weapons and

violence" and in "recent years, the JMPHP has been known to be

associated with murders, drug sales and smuggling and weapons

trafficking."

            The PSI Report set out a proposed sentencing framework.

It grouped the two offenses of conviction, see USSG §3D1.2(d);

confirmed that the defendant had no prior adult record and placed

him in criminal history category (CHC) I; pegged his base offense

level at 20, see id. §2K2.1(a)(4)(B); noted that he had fully

accepted responsibility and applied the corresponding three-level

downward offense-level adjustment, see id. §3E1.1; and calculated

a guideline sentencing range (GSR) of 24 to 30 months (based on a

total offense level of 17 and CHC I).


                                   - 3 -
            The PSI Report also suggested a potential reason for

imposing a sentence above the GSR: returning to the defendant's

musical stylings, the Report rehashed his involvement in Pacho y

Cirilo and the group's connection to the JMPHP. In a similar vein,

it reiterated the claim that the group's songs "promote violence,

drugs and the use of weapons and violence, as . . . can be seen

through   their    videos   which   are   readily   available   [o]n     the

internet." The Report included certified translations of two songs

performed by Pacho y Cirilo ("Dicen Que Vienen Por Mi" and "Como

Grita El Palo"), as well as a certified transcription of a music

video ("La Calle Es Pa Hombres").1

            Prior to sentencing, the defendant objected to the PSI

Report on the ground, inter alia, that consideration of his

performances with Pacho y Cirilo would infringe his First Amendment

rights.     The defendant raised this objection again at the outset

of the disposition hearing.      The government doubled down, not only

resisting    the   defendant's   objection   but    also   introducing   at

sentencing excerpts from yet another Pacho y Cirilo music video

(for the song "Como Grita El Palo").         The district court watched

the video and commented that it included rifles and grenade



    1 Portions of the first two songs performed by the defendant
are reproduced in the appendix to this opinion. Because the record
does not specify which portions of "La Calle Es Pa Hombres" the
defendant performed, nothing from that work is included in the
appendix.
                               - 4 -
launchers, along with children.             After an extended colloquy, the

sentencing court ruled that it could consider the defendant's

musical pursuits in crafting the sentence.

               The court, without objection, adopted the guideline

calculations adumbrated in the PSI Report.                 It then proceeded to

impose a 96-month term of immurement — more than three times the

top of the GSR.         This timely appeal followed.

II.       ANALYSIS

               Appellate    review    of    a   criminal    sentence    has     both

procedural and substantive dimensions.                 See United States v.

Clogston, 662 F.3d 588, 590 (1st Cir. 2011).                In both dimensions,

we assay the challenged sentence under the abuse of discretion

rubric.2      See Gall v. United States, 552 U.S. 38, 51 (2007); United

States v. Narváez-Soto, 773 F.3d 282, 285 (1st Cir. 2014).

               Typically, a reviewing court will address claims of

procedural       sentencing      error     before   addressing      a   claim     of

substantive unreasonableness.              See Gall, 552 U.S. at 51; United

States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008).               Here, however,

the       defendant's   claims   of   sentencing     error    are   inextricably



      2The government asserts that a more rigorous standard of
review should apply because the defendant did not challenge the
substantive reasonableness of the sentence below. This assertion
elevates hope over reason: the defendant, ably represented,
objected both strenuously and repeatedly to the consideration of
his   protected  conduct   at  sentencing.     Those   objections
sufficiently preserved the claim of error advanced on appeal.
                              - 5 -
intertwined and are best captured by looking at the sentence

through the prism of substantive reasonableness.                    We proceed

accordingly.

           The hallmark "of a reasonable sentence is a plausible

sentencing rationale and a defensible result."              Martin, 520 F.3d

at 96.    And when — as in this case — the sentencing court has

varied substantially from the GSR, its stated justifications for

the sentence must be correspondingly more compelling.                See Gall,

552 U.S. at 50.

           In the case at hand, the defendant contends that the

district court's unbridled use of the lyrics he performed with

Pacho y Cirilo and the music videos violated his First Amendment

rights,   undermined       the   legitimacy   of    the   court's   sentencing

rationale, and rendered his sentence substantively unreasonable.

We approach this contention with a degree of circumspection.                 As

a general matter, "the sentencing authority has always been free

to   consider   a   wide    range   of   relevant    material."      Payne   v.

Tennessee, 501 U.S. 808, 820-21 (1991).             This freedom allows "an

inquiry broad in scope, largely unlimited either as to the kind of

information [the sentencing court] may consider, or the source

from which it may come."         United States v. Tucker, 404 U.S. 443,

446 (1972).

           In keeping with these broad boundaries, the Supreme

Court has held "that the Constitution does not erect a per se
                                     - 6 -
barrier to the admission of evidence concerning one's beliefs and

associations   at   sentencing   simply   because   those    beliefs   and

associations are protected by the First Amendment."            Dawson v.

Delaware, 503 U.S. 159, 165 (1992).       At the same time, though, "a

defendant's abstract beliefs, however obnoxious to most people,

may not be taken into consideration by a sentencing judge."

Wisconsin v. Mitchell, 508 U.S. 476, 485 (1993).            The upshot is

that conduct protected by the First Amendment may be considered in

imposing sentence only to the extent that it is relevant to the

issues in a sentencing proceeding.        See Dawson, 503 U.S. at 164;

United States v. Stewart, 686 F.3d 156, 167 & n.10 (2d Cir. 2012).

          Given the kaleidoscopic array of factors ordinarily in

play at sentencing, see 18 U.S.C. § 3553(a), protected conduct may

be relevant in a multiplicity of ways.          For instance, it may

legitimately be used to rebut mitigating evidence proffered by the

defendant.   See Dawson, 503 U.S. at 167-68; United States v. Kane,

452 F.3d 140, 143 (2d Cir. 2006) (per curiam).      So, too, it may be

used to evaluate the degree of the defendant's remorse, see

Stewart, 686 F.3d at 167, the likelihood of reoffending, see United

States v. Simkanin, 420 F.3d 397, 417-18 (5th Cir. 2005), or the

extent of punishment needed for deterrence, see United States v.

DeChristopher, 695 F.3d 1082, 1099 (10th Cir. 2012).         But any such

connection must be established, not merely assumed, in the context

of the particular case.   Where protected conduct has no bearing on
                                 - 7 -
either the crime committed or on any of the relevant sentencing

factors, consideration of that conduct infringes a defendant's

First Amendment rights.        See Dawson, 503 U.S. at 168.

           Dawson     illustrates      this     point.         There,     the     Court

examined   the     admission   at   sentencing      in    a   murder      case       of   a

statement about the racist beliefs of the Aryan Brotherhood, of

which the defendant was a member.               See id. at 162.            The Court

concluded that, in the absence of evidence linking the statement

to some issue in the case (say, that the Aryan Brotherhood was

"associated with drugs and violent escape attempts at prisons" or

"advocate[d] the murder of fellow inmates"), the statement was

"totally without relevance to [the] sentencing proceeding."                           Id.

at 165.    After all, it did not actually connect the defendant's

membership    in    the   group   to   any     aspect    of   the    crime      or    the

defendant's      personal   characteristics,        nor       did    it   rebut       the

defendant's mitigating evidence.             See id. at 166-68.

           The government submits that, under the Dawson standard,

the district court's reliance on the lyrics and music videos as

part of its sentencing rationale passes muster.                     On its account,

the lyrics and music videos "promote[] the use of drugs, violence,

and weapons" and, thus, implicate a slew of sentencing factors.

These include the nature and circumstances of the offense, the

defendant's personal history and characteristics, his motive for

possessing a machinegun, the need for deterrence, and respect for
                                       - 8 -
the law.   Relatedly, it suggests that the lyrics and music videos

contradicted one of the defendant's asserted justifications for a

more lenient sentence: that he possessed the weapon merely for

self-defense.

           The government's arguments track the district court's

approach to the protected conduct.        The court acknowledged that

"you   cannot   sentence   somebody   because     he's   a   musician,"   but

nevertheless concluded that "the lyrics of this music confirm

. . . this individual's involvement with firearms, with violence,

with murders, in the context of a community like the [JMPHP],"

particularly given that the housing project is "known as a no man's

zone" where drug trafficking and murders take place.              The court

later described the lyrics and music videos as bearing on the need

for    deterrence   because   they    comprised    "written     and   visual

confirmation" of the defendant's "inclination as to violence, his

liking to violence."       The court reasoned that these materials

provided "objective evidence that lets you reach the conclusion

that this [crime] was not a mistake that [the defendant] committed

one day . . . . [T]his is an individual who makes a life . . . not

only carrying this kind of firearm, but also preaching . . . the

benefits of having this kind of firearm, the use you can give to

them, expressing how you kill people, expressing how you don't

care about human life." Finally, the court posited that the lyrics

and music videos were "the only way to tie the possession of that
                                 - 9 -
gun with the [defendant's] intentions and what he has in his mind

regarding that gun," so that the content of the songs called for

a "[m]ajor deterrent sentence."

          Implicit in this rationale is the assumption that the

lyrics and music videos accurately reflect the defendant's motive,

state of mind, personal characteristics, and the like.   But this

assumption ignores the fact that much artistic expression, by its

very nature, has an ambiguous relationship to the performer's

personal views.3   That an actress plays Lady Macbeth, or a folk

singer croons "Down in the Willow Garden," or an artist paints

"Judith Beheading Holofernes," does not, without more, provide any

objective evidence of the performer's motive for committing a

crime, of his personal characteristics (beyond his ability to act,

sing, or paint, as the case may be), or of any other sentencing

factor.

          This is not to say that a defendant can prevent a

sentencing court's consideration of his words or conduct simply by

couching those words or conduct in artistic form.        Evidence

extrinsic to the protected words or conduct may make clear that a

performance or artistic work speaks to a defendant's motive, state

of mind, or some other attribute in a way that is relevant to


    3  At sentencing, the district court could not treat the
defendant as more than a performer of the songs at issue here.
The record is devoid of any evidence that the defendant composed
the lyrics that were called to the court's attention.
                              - 10 -
sentencing.     In the absence of such extrinsic evidence, the mere

fact that a defendant's crime happens to resemble some feature of

his prior artistic expression cannot, by itself, establish the

relevance of that expression to sentencing.

            Evidence      that    might   support    such    an     inference    is

conspicuously    lacking     in    this   case.     Nothing       in   the   record

indicates    that   the    lyrics    or   music     videos    had      any   direct

application either to the defendant or to his lifestyle.                     Nor is

there any basis for a claim that they are unlawful in any respect.

By like token, there is no hint that the defendant had any prior

involvement with illegal firearms, much less with violence or

murder.     The government did not so much as attempt to prove any

uncharged conduct, nor did the district court make any findings

about the defendant's involvement in any other criminal activity.

To the contrary, the PSI Report — accepted in this regard both by

the government and the district court — confirms that, at age 34,

the defendant had no adult criminal history.

            The district court's conclusions — that the lyrics and

music videos comprised "objective evidence . . . that this [crime]

was not a mistake," that they reflected that the defendant had a

history of involvement "with firearms, with violence, [and] with

murders," and that they made it likely that the defendant possessed

the gun for nefarious purposes — thus rested entirely on naked

inferences drawn from the content of the lyrics and music videos.
                                     - 11 -
The record makes manifest that those inferences were drawn without

any extrinsic evidence that the lyrics and music videos reflected

anything other than performances akin to an actor inhabiting a

role.

           Appraising the district court's reasoning in this light

throws into bold relief the differences between this case and the

instances where protected conduct has been found to have been

properly considered at sentencing.              In such cases, there is

typically no question but that the views expressed through the

protected conduct — say, statements to the media, see United States

v. Serrapio, 754 F.3d 1312, 1322-23 (11th Cir. 2014); Stewart, 686

F.3d at 164-65, how-to books authored by a defendant, see Kane,

452 F.3d at 142, or a defendant's advocacy for flouting the law,

see   Simkanin,   420    F.3d   at   417-18   —   accurately     reflect   the

defendant's state of mind or other factors relevant to sentencing.

In Kane, for example, the district court explicitly found that the

content of the expressive conduct was not satire "meant only for

entertainment purposes." 452 F.3d at 143. Where this link between

protected conduct and factors relevant to sentencing is missing,

the content of the artistic expression cannot be used to punish

the defendant.    On this record, that link has not been forged.


           This   gets    the   grease   from     the   goose.     Given   the

sentencing court's heavy reliance on protected conduct that was

not tied through extrinsic evidence to any relevant sentencing
                            - 12 -
factor, its sentencing rationale is implausible.                   This lack of

plausibility is especially stark where — as in this case — the

sentencing court undertook a sharp upward variance and, thus,

assumed       an   obligation     to   provide   a   rationale     "sufficiently

compelling to support the degree of the variance."               Gall, 552 U.S.

at 50.      Taking the lyrics and music videos as "objective evidence"

of factors relevant to sentencing, without an iota of corroborating

evidence, results in a sentencing rationale wholly unsupported by

the record.4         Like a house built upon a porous foundation, a

sentence built upon a rationale that is unsupported by the record

cannot stand.         See United States v. Ofray-Campos, 534 F.3d 1, 44

(1st Cir. 2008).

III.       CONCLUSION

               We need go no further.5           For the reasons elucidated

above,       we    vacate   the   defendant's     sentence   and    remand   for

resentencing consistent with this opinion.             We take no view of the

appropriate length of the sentence to be imposed.


Vacated and remanded.


       4
      To be sure, the district court alluded to other factors in
imposing sentence — specifically, Puerto Rico's high crime rate
and the quantity of ammunition that the defendant was carrying.
The sentencing transcript leaves no doubt, though, that the lyrics
and music videos dominated the court's thought process and
constituted the driving force behind the upwardly variant
sentence.

       5
      We note that the defendant has put forth other arguments for
vacating his sentence.    Given our conclusion that the sentence
lacks a plausible sentencing rationale and is therefore
substantively unreasonable, we need not address these arguments.
                              - 13 -
                             APPENDIX


     For two of the Pacho y Cirilo works included in the PSI Report

— "Dicen Que Vienen Por Mi" and "Como Grita El Palo" — the Report

identifies specific lyrics performed by the defendant.        Those

lyrics, with an explanatory footnote omitted, some expletives

deleted, and minor alterations to capitalization, are reproduced

below.   Intervening lyrics sung by other performers are denoted

with an ellipsis.



     "Dicen Que Vienen Por Mi"

     . . .

     THE ONES IN CONTROL ALQAEDAS INCORPORATED

     . . .

     Listen, these dudes are still getting together a group

     To put them against me without them even knowing me

     Mine know what we can give

     They know we can go to war with the United States Army

     They hold eighty meetings

     They get 30 brown-nosers to join

     They say they are heading this way 'cause they have millions

     They get 10 rickety cars

     And thirty rifle carrying guys




                                - 14 -
If they want to have 50 fine with me they are shitting their

pants

They call and cry uncle after they hear all of the ak

The same my posse have, all my cats

We are clear

They better listen

I already know they are aware of the way I live

I am passive if I'm treated right

But really bad if treated wrong

I am the kind that loves reggae and spraying them bullets

Humiliate them to their face to see them handle a few bucks

You don't have to be a millionaire to blow all his brains

. . .

These mother f---ers are dreamin'

With prized birdies

What the f--- are they saying

What rifle is to be oiled?

It must be the bb rifles being oiled by you,

Mine are the pure scene

And how do you want it to feel?

I will let you pick

The one you prefer

But hurry up

'Cause I don't have that much patience
                          - 15 -
My conscience will go on as it has to this day

Like a fool, you are not the first one I hit

. . .

Hey crazy we are hanging with D. Ozi daddy

You know we don't tape with softy, daddy

The tough ones with the tough ones

We have a short career but a lot of musical value

You know daddy

Stay parked and easy daddy

'Cause you know we don't play

. . .

I am hanging with Bozz daddy

The one in the f-----g track, Goldo

You even know our rhythms

The sound goes over

. . .

If these people doesn't want to help you out

It's because they're scared



"Como Grita El Palo"

. . .

(Listen, give me a break give me a chance at it too

To hit 'em all sons of bitches with the most elephant one)

I'm going about with a ski-mask and the moving notebook
                        - 16 -
Don't be braggin', your cat dances with the others at the

Quiseven

There are many that have airs and go around causing them

posses to split

You f--- around real low

Don't be braggin' to me, don't defy me

'Cause I'll go out on a mission and will crack your face on

the steering wheel

We never let it down and we are always awake

And to anyone giving a concert we will take down their stage

We will empty the guitar and the show will be over

Don't be coming here to brag with a dirty 4-4

We're at the castle, another league all together

We are fine here, say what they may

We're at the castle, another league

We are eternal, see you in the other life

. . .




                           - 17 -
