          United States Court of Appeals
                     For the First Circuit


No. 17-1726

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                    VICTOR M. MANGUAL-ROSADO,

                      Defendant, Appellant.


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

       [Hon. Carmen Consuelo Cerezo, U.S. District Judge]


                             Before

                 Torruella, Kayatta, and Barron,
                         Circuit Judges.


     Luis A. Guzmán Dupont on brief for appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and B. Kathryn Debrason, Assistant United
States Attorney, on brief for appellee.


                        October 26, 2018
               BARRON,   Circuit     Judge.          Victor    M.   Mangual-Rosado

("Mangual") pleaded guilty to one count of possessing a firearm

while being an unlawful user of a controlled substance.                       He now

appeals his sentence of 30 months' imprisonment on the grounds

that it was procedurally and substantively unreasonable.                     For the

reasons that follow, we affirm.

                                        I.

               On November 2, 2016, Mangual was indicted in the District

of Puerto Rico for possession of a firearm and ammunition by an

unlawful user of a controlled substance in violation of 18 U.S.C.

§ 922(g)(3) and § 924(a)(2).            Mangual does not dispute that, a

week earlier, Puerto Rico Police Department officers had found

Mangual    sleeping      on   the   couch    at   his   friend's        residence    in

possession of a Bushmaster rifle loaded with a large-capacity

magazine and 30 rounds of .223 caliber ammunition.                      Pursuant to a

plea agreement that Mangual signed on January 10, 2017, he pleaded

guilty    to    knowingly     and   unlawfully       possessing     a    firearm    and

ammunition while being an unlawful drug user and agreed to forfeit

the rifle and ammunition.            Mangual also agreed to a waiver-of-

appeal provision.

                                        II.

               The   government     argues    that    the     appeal     waiver    bars

Mangual from appealing his sentence because the District Court

imposed a sentence "within the bottom to middle of the applicable


                                       - 2 -
guideline range[,]" and the plea agreement's waiver of appeal

contemplated    a   sentence   "in     accordance   with    the    terms   and

conditions set forth in the Sentence Recommendation provisions of

this Plea Agreement."       To this point, the government notes that

the Sentence Recommendation provision of the plea agreement stated

"that [the] defendant may request a sentence of imprisonment at

the   bottom   of   the   applicable   Guidelines   range    and    that   the

Government may request a sentence of imprisonment up to the middle

of the applicable Guidelines range."

           The sentence did fall within the bottom to middle of the

sentencing guidelines range on which the District Court relied.

The record shows, however, that the District Court did not use the

same guidelines range that the parties used in making their

sentencing recommendations in the plea agreement.            Nevertheless,

Mangual does not argue in his opening brief that the appeal waiver

does not bar his appeal here. Nor, for that matter, does Mangual's

argument refer to the appeal waiver at all.         In fact, even though

the government contends in its brief on appeal that the waiver to

which Mangual agreed does bar his appeal of the sentence, Mangual

also did not file a reply brief.

           These failures are quite problematic for Mangual.                We

have made clear that "[w]here . . . the defendant simply ignores

the waiver and seeks to argue the appeal as if no waiver ever had

been executed, he forfeits any right to contend either that the


                                     - 3 -
waiver should not be enforced or that it does not apply."                 United

States v. Miliano, 480 F.3d 605, 608 (1st Cir. 2007).

             But, we need not rely on the appeal waiver to dispense

with Mangual's appeal.        Even if we do consider the merits of his

challenges to the sentence, those challenges fail.

                                     III.

             We begin with Mangual's four procedural challenges to

the reasonableness of his sentence.              As Mangual concedes that he

did not raise any of these challenges below, our review is only

for plain error.    United States v. Arsenault, 833 F.3d 24, 28 (1st

Cir. 2016).    And, as Mangual has not shown that the District Court

committed plain error, or even reversible error at all, none has

merit.

             Mangual's   first   procedural        challenge     is    that   the

District Court relied on clearly erroneous facts in calculating

his base offense level ("BOL") per section 2K2.1(a)(4)(B) of the

U.S. Sentencing Guidelines Manual, which provides for a BOL of 20

for an offense involving possession of a "semiautomatic firearm

that is capable of accepting a large capacity magazine" by a

prohibited    person,    in   this   case    a    drug   user.        U.S.S.G.   §

2K2.1(a)(4)(B).    But, the presentence report ("PSR") contains the

probation officer's finding that "the firearm in this case was a

semiautomatic firearm (Bushmaster Rifle, Model Carbon- 15 Pistol,

Caliber 5.56, Serial Number D04556) that is capable of accepting


                                     - 4 -
a large capacity magazine and hence, among the evidence seized in

this case there is a high capacity magazine (One 5.56x45 PMAG rifle

magazine with capacity for 30 rounds)."      Nor does Mangual point to

any evidence in the record that would call into question the

District Court's finding that the rifle he was found to possess

while being an unlawful drug user was a semiautomatic firearm that

was capable of receiving a large-capacity magazine.            We thus see

no basis for finding clear error here.       United States v. Cox, 851

F.3d 113, 124 (1st Cir. 2017); see United States v. Cyr, 337 F.3d

96, 100 (1st Cir. 2003) ("[I]f 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.").

            Mangual's   next   procedural    challenge    concerns     the

District Court's weighing of the 18 U.S.C. § 3553(a) factors. But,

the District Court expressly stated that it had considered all

relevant § 3553(a) factors, noting specifically its consideration

of the "nature of the offense, the parties' plea agreement, the

type of weapon that was involved and the amount of ammunition[.]"

See 18 U.S.C. § 3553(a)(1)-(2).     Given that the District Court was

not required to "dissect every factor . . . 'one by one, in some

sort   of   rote   incantation,   when    explicating    its    sentencing

decision,'" United States v. Rivera-Clemente, 813 F.3d 43, 51 (1st

Cir. 2016) (quoting United States v. Turbides–Leonardo, 468 F.3d

34, 40–41 (1st Cir. 2006)), we cannot say that the District Court


                                  - 5 -
failed to give due consideration to the § 3553(a) factors in

imposing a mid-range sentence.             See id.

             We also reject Mangual's assertion that the District

Court committed procedural error by not adequately explaining its

sentencing rationale.        The explanation required by § 3553(c) "need

[not] be precise to the point of pedantry."                      United States v.

Dávila–González, 595 F.3d 42, 48 (1st Cir. 2010) (quoting Turbides-

Leonardo, 468 F.3d at 40); see United States v. Vargas-García, 794

F.3d 162, 166 (1st Cir. 2015). And here, before sentencing Mangual

to   a   term   of    imprisonment    in    the   middle      of    the       applicable

guidelines      sentencing      range,      the   District         Court      described

Mangual's use of marijuana and Percocet pills, the fact that this

was his third conviction, and the type of the weapon and amount of

ammunition involved in the offense.

             Mangual's     final     procedural       challenge       is      that    the

District Court reversibly erred by failing to elicit objections to

the sentence after it was announced.                  Mangual relies for this

argument on an Eleventh Circuit case that requires a district

court,    after      imposing   a    sentence,       to   give     the     parties    an

opportunity     to    object    to   the    court's       findings       of    fact   and

conclusions of law.        United States v. Jones, 899 F.2d 1097, 1102

(11th Cir. 1990).        However, we have not imposed the requirement

set forth in Jones.       See United States v. Cortés-Medina, 819 F.3d

566, 574 n.10 (1st Cir. 2016) (Lipez, J., dissenting) (stating


                                       - 6 -
that the First Circuit does not, but should, have such a rule);

see also United States v. Gallant, 306 F.3d 1181, 1189 (1st Cir.

2002) (noting that the Federal Rules of Criminal Procedure are

silent regarding post-sentencing objections).

                  We turn then to Mangual's challenge to the substantive

reasonableness of the sentence.             Mangual asserts that the District

Court's          sentence    was    substantively    unreasonable    because   the

District Court imposed too harsh a sentence given that the record

shows, in his view, that he was merely "in the wrong place at the

wrong time."1         "But the fact '[t]hat the court chose to attach less

significance to certain mitigating circumstances than [Mangual]

thinks they deserved does not make his sentence substantively

unreasonable.'"             United States v. Milán-Rodríguez, 819 F.3d 535,

540 (1st Cir. 2016) (first alteration in original) (quoting United

States v. Colón–Rodríguez, 696 F.3d 102, 108 (1st Cir. 2012)).

Rather, "[a] sentence is substantively reasonable so long as it

rests       on    a   plausible     sentencing    rationale   and   exemplifies   a

defensible result."                Id. (quoting United States v. Fernández–

Garay, 788 F.3d 1, 6 (1st Cir. 2015)).               And that is the case here,

given the features of the case that the District Court highlighted:

Mangual's drug use, his prior convictions, and the type of the


        1
       Mangual does also argue that his sentence was substantively
unreasonable because of the alleged procedural errors. But, given
our analysis of the merits of those procedural errors, this
challenge necessarily fails.


                                          - 7 -
weapon and amount of ammunition involved in the offense.           Nor does

Mangual identify any mitigating grounds sufficient to persuade us

that    the   District   Court   acted    unreasonably   in   imposing    its

sentence.     We thus reject the challenge even if we choose to apply

the    more   defendant-friendly   abuse-of-discretion        standard   that

Mangual asks us to use.

                                    IV.

              For the foregoing reasons, the District Court's sentence

is affirmed.




                                   - 8 -
