          United States Court of Appeals
                     For the First Circuit


No. 17-1806

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                   FRANCISCO SEVERINO-PACHECO,

                      Defendant, Appellant.


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

         [Hon. Francisco A. Besosa, U.S. District Judge]


                             Before

                    Lynch, Stahl, and Barron,
                         Circuit Judges.


     Mauricio Hernandez Arroyo and Law Offices of Mauricio
Hernandez Arroyo on brief for appellant.
     Rosa Emilia Rodriguez-Velez, United States Attorney, Mariana
E. Bauza-Almonte, Assistant United States Attorney, and Julia M.
Meconiates, Assistant United States Attorney, on brief for
appellee.



                        December 18, 2018
          STAHL,     Circuit    Judge.       Defendant-Appellant    Francisco

Severino-Pacheco ("Severino") appeals his sentence for illegal

possession of a machine gun.          Following Severino's guilty plea,

the   district     court      calculated       a   Sentencing      Guidelines

("Guidelines") range of 24 to 30 months.               The district court

ultimately imposed an above-Guidelines sentence of 40 months,

noting, inter alia, that Severino had recklessly fired an automatic

weapon in a neighborhood.

          On     appeal,   Severino    challenges     the    procedural   and

substantive reasonableness of his sentence.           He contends that the

district court erred by relying on disputed facts and abused its

discretion in imposing an above-Guidelines sentence.               Finding no

reversible error or abuse of discretion, we affirm.

          I.      Factual Background

          Because this sentencing appeal follows from a guilty

plea, we "glean the relevant facts from the plea agreement, the

change-of-plea    colloquy,    the    presentence     investigation    report

[PSR], and the transcript of [sentencing]."                 United States v.

Fernández-Cabrera, 625 F.3d 48, 50 (1st Cir. 2010).

          On February 10, 2017, the Puerto Rico Police Department

("PRPD") in San Juan received a call reporting a speeding vehicle

and gunfire in the Hato Rey Este Precinct.           PRPD officers in Hato

Rey also heard gunfire and observed a black vehicle speeding with

its headlights turned off coming from the direction of the gunfire.


                                     - 2 -
Those officers pursued the vehicle and eventually stopped it, but

the driver fled and was never located.          However, officers were

able to apprehend the vehicle's passenger, later identified as

Severino.

            Officers   conducted   a   safety   frisk   of   Severino   and

discovered a .357 caliber firearm with an empty magazine hidden in

his groin area, along with a black holster, two cell phones, and

$181 in cash.     Officers secured the firearm and placed Severino

under arrest.    In a separate search, officers recovered 14 shell

casings from .357 caliber bullets from the area where the gunfire

was reported.

            After Severino was transported to the local precinct

headquarters, he was read his Miranda rights, and thereafter

refused to speak with PRPD officers.        Later, special agents from

the Homeland Security Investigations ("HSI") Public Safety Group

arrived and again read Severino his rights. After this recitation,

Severino waived his rights and voluntarily spoke with the agents.

            Severino told the HSI agents that he was with the driver

of the vehicle, whom he refused to identify, when he "decided to

fire a 'burst' from his firearm outside the [car] window for no

apparent reason."      Severino added that he "did not have the high

capacity magazine fully loaded, but he only had around 14 rounds

inside it."     He also admitted to purchasing the gun for $1,600,

knowing that it was modified to operate as a fully automatic


                                   - 3 -
weapon.     Upon examination, it was revealed that the weapon in

question was a firearm as defined by 18 U.S.C. § 921(a)(3)(A) and

a machine gun as defined by 26 U.S.C. § 5845(b).                  It was further

determined that the firearm travelled in or affected interstate

and/or foreign commerce.

            II.   Procedural Background

            On April 4, 2017, Severino pleaded guilty to illegal

possession of a machine gun in violation of 18 U.S.C. § 922(o).

His base offense level was 20, which was subsequently reduced three

levels    pursuant    to    U.S.S.G.   § 3E1.1(a)-(b)       for   acceptance    of

responsibility, yielding a final offense level of 17.                 Severino's

Criminal History Category was determined to be I, resulting in a

Guidelines range of 24 to 30 months.              Severino did not file any

written objection to the PSR.

            At sentencing, defense counsel requested a sentence of

24 months, whereas the government requested an above-Guidelines

sentence of 40 months.         For the first time, defense counsel voiced

concern    that   the      government's      sentencing    memorandum   included

Severino's admission to firing the weapon:1

            [The] Government is requesting an upward
            variance based [in part on] Mr. Severino
            admit[ing] to firing the gun. But . . . when
            [the] Government offered [in its sentencing
            memorandum] what they would be able to prove
            beyond a reasonable doubt in this case, that

     1 Defense       counsel    did    not    explicitly    frame   this   as   an
objection.


                                       - 4 -
          fact was not mentioned. It wasn't mentioned
          because we had previously spoken with [the
          prosecutor] about it [but Severino] does not
          admit to having stated that.

          . . .

          [The proffer] admissions were limited to [the
          facts] that he had purchased the gun for
          $1,600, and that he knew that that firearm had
          been welded, but nothing was stated about the
          alleged shooting.

          . . .

          No evidence of corroboration by the police has
          been given to us. For example, this interview
          was not recorded.    Another example, if [it]
          was the case[] that Mr. Severino did admit to
          [firing the weapon], no paraffin testing to
          show that he had gunpowder residue was done.
          Also, Your Honor, no report linking these
          alleged casings that were found to match the
          firearm that Mr. Severino was in possession
          of.

Notably, defense counsel did not address the PSR's statement that

Severino admitted to firing the weapon, a fact the district court

explicitly relied on in determining Severino's sentence:

          The Court has given weight to the fact that
          Mr. Severino admitted to possessing an
          automatic firearm knowing that it was illegal
          to do so and that for no apparent reason he
          fired the weapon without hesitation regardless
          of   the   consequences.      That   act   was
          irresponsible and put at risk lives of
          innocent [people] who could have been caught
          in the path of the bullets.

The   district    court   also   considered   the   sentencing   factors

enumerated in 18 U.S.C. § 3553(a), including the "nature and

circumstances" of the offense, along with government statistics


                                  - 5 -
concerning gun ownership and violent crimes in Puerto Rico, and

the need for deterrence.

            Weighing these factors, the district court ultimately

sentenced Severino to 40 months' imprisonment followed by three

years' supervised release.     It explained that "a sentence above

the guideline range reflects the seriousness of the offense,

promotes respect for the law, protects the public from further

crimes by Mr. Severino, and addresses the issues of deterrence and

punishment."    This timely appeal followed.

            III. Analysis

            On appeal, Severino raises a variety of claims as to his

sentence.    It is unclear from his brief to what extent he is

raising a claim of substantive as well as procedural error;

however, it appears that he argues that his ultimate sentence was

substantively unreasonable as the result of procedural mistakes.

We will first address his arguments regarding the district court's

factfinding -- which are undoubtedly procedural in nature -- before

proceeding to his challenge to the ultimate sentence, which appears

to have both procedural and substantive elements.

                 A.   Procedural Challenge to Factfinding

            Severino first argues that his sentence was procedurally

unreasonable because the district court relied on facts that were

not established. Specifically, he claims that the court improperly

relied on the PSR in finding that he admitted to firing the weapon.


                                - 6 -
He further contends that his purported admission came during an

unrecorded   interview   that   violated   a    policy   set    forth   in    a

Department of Justice ("DOJ") memorandum.2          We reject his argument

for two reasons.

          First,   Severino     never   filed   a   written    objection     to

either the original PSR submitted on June 7, 2017, or the amended

PSR filed on June 9, 2017.3     "Generally, a party has 14 days after

receipt of a presentence report within which to object in writing

to, inter alia, 'material information' contained in that report."

United States v. Cortés-Medina, 819 F.3d 566, 569 (1st Cir. 2016)

(citing Fed. R. Crim. P. 32(f)(1)).4       Following that period, if no


     2 This argument rests on Severino's belief that HSI agents
violated a DOJ policy creating a "presumption in favor of recording
. . . statements made by individuals in the custody of the FBI,
the DEA, the ATF, and the United States Marshal Service." Press
Release 14-548, Dep't of Justice, Attorney General Holder
Announces Significant Policy Shift Concerning Electronic Recording
of     Statements     (May      22,     2014),     available     at
https://www.justice.gov/opa/pr/attorney-general-holder-announces
-significant-policy-shift-concerning-electronic-recording.
     3 The differences between the two PSRs are not relevant for
the purpose of resolving this appeal.
     4 The District of Puerto Rico’s Local Rule 132(b)(3)(A)
similarly states:
          Within fourteen (14) days from disclosure of
          the PSR, counsel for the government and
          counsel for the defense shall file and deliver
          to the probation office, and to each other,
          written objections to the facts or guideline
          application in the PSR. If counsel have no
          objections, each shall so notify the probation
          office, and each other, in writing. A party
          waives any objection to the PSR by failing to
          comply with this rule unless the Court


                                  - 7 -
objections have been filed, "a PSR bears sufficient indicia of

reliability    to    permit   the   district   court   to   rely   on   it    at

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

2003) (quotation marks and citation omitted).

           Assuming that his objection has not been waived,5                  we

evaluate this procedural claim under the rubric of plain error.

Plain error review "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."        United States v. Perretta, 804 F.3d 53, 57

(1st Cir. 2015) (citation and quotation marks omitted).                 "Plain

error review is not appellant-friendly," Cortés-Medina, 819 F.3d

at 569, and "[t]he party asserting plain error bears the burden of




           determines that the basis for the objection
           was not reasonably available prior to the
           deadline.
     5 Severino's failure to object to the PSR has potential
implications for the standard of review, as it might be interpreted
as a waiver.    "A party waives a right when he intentionally
relinquishes or abandons it."     United States v. Rodriguez, 311
F.3d 435, 437 (1st Cir. 2002) (citations omitted). By contrast,
a party forfeits a right when he "fails to make a timely assertion
of [that] right."    Id. (citation omitted). While waived issues
cannot be resurrected on appeal, forfeited issues may still be
reviewed, "albeit for plain error."     United States v. Gaffney-
Kessell, 772 F.3d 97, 100 (1st Cir. 2014) (citations omitted). In
any event, we need not decide whether this procedural argument was
waived because it fails even under the more lenient forfeiture
standard.


                                     - 8 -
persuasion," United States v. Pabon, 819 F.3d 26, 33 (1st Cir.

2016) (citation omitted).

          Here, Severino fails to even attempt to explain how the

plain error standard has been satisfied. As we have stated before,

"[i]t is not enough merely to mention a possible argument in the

most skeletal way, leaving the court to do counsel's work, create

the ossature for the argument, and put flesh on its bones." United

States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).    Accordingly,

even applying plain error review, Severino has waived any appellate

argument concerning the procedural reasonableness of his sentence.

See Pabon, 819 F.3d at 33-34 (holding failure to attempt to meet

the four-part burden under plain error review constitutes waiver).6

          Second, we note that even if an objection had been

properly made to the PSR, and notwithstanding the likely appellate

waiver, Severino's argument necessarily fails.   As we have stated,

"[t]he defendant is free to [timely] 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


     6 Severino relies on United States v. Rodríguez-Meléndez, 828
F.3d 35 (1st Cir. 2016) for the proposition that the district court
committed procedural error. In that case, we vacated a 36-month
sentence and remanded the matter for resentencing when the district
court committed erroneous factfinding. See id. at 39-40. However,
that case is inapposite because the district court’s factfinding
in Rodriguez-Melendez directly contradicted the relevant PSR. See
id. at 37. By contrast, here both the original and amended PSR
explicitly stated that Severino admitted to firing the machine
gun.


                              - 9 -
dispute on the merits."           Cyr, 337 F.3d at 100.           If, however, "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." Id. (citation omitted).

              At sentencing, Severino provided the district court with

no evidence to substantiate his claims, nor did he propose to

provide any such evidence.             Therefore, the district court did not

err in adopting the facts as stated in the PSR.                    See United States

v.   Grant,     114    F.3d     323,    328    (1st    Cir.      1997)   ("[A]lthough

[defendant] objected to certain facts in the PSR . . . [he] did

not provide the sentencing court with evidence to rebut the factual

assertions [contained therein] . . . .                     Consequently, the court

was justified in relying on the contested facts.").

                      B.     Challenge to Reasonableness of Sentence

              Severino also challenges the substantive reasonableness

of his 40-month sentence, arguing that the 10-month upward variance

was indefensible given his personal characteristics and first-time

offender status.           In support, he points to the relatively short

amount of time between his arrest and plea and that he was a first-

time offender.         At his sentencing, Severino made no objection to

the length of his sentence.             While Severino now frames this claim

of error as substantive, he proceeds to make a procedural argument

criticizing     the        district    court's      weighing     of   the   Guidelines

sentencing factors. For analytical purposes only, we will construe


                                        - 10 -
this argument as a challenge to both the procedural and substantive

reasonableness of Severino's ultimate sentence.

           "For procedural challenges, 'we afford de novo review to

the   sentencing    court's    interpretation     and    application   of    the

sentencing guidelines, assay the court's factfinding for clear

error, and evaluate its judgment calls for abuse of discretion.'"

United States v. Santa-Otero, 843 F.3d 547, 550 (1st Cir. 2016)

(quoting United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st

Cir. 2015)).

           By      contrast,    "[i]n    reviewing       the   [substantive]

reasonableness      of   a   sentence   outside    the    Guidelines   range,

appellate courts may [] take the degree of variance into account

and consider the extent of a deviation from the Guidelines."                Gall

v. United States, 552 U.S. 38, 47 (2007).           "Regardless of whether

the sentence imposed is inside or outside the Guidelines range,

the appellate court [] review[s] the sentence under an abuse-of-

discretion standard." Id. at 51. Although "the standard of review

for unpreserved challenges to the substantive reasonableness of a

sentence remains unclear," an appellate court "only reverse[s]

where the sentence is outside of the 'expansive universe of

reasonable sentences.'" United States v. Rondón-García, 886 F.3d

14, 26 (1st Cir. 2018) (quoting United States v. King, 741 F.3d

305, 308 (1st Cir. 2014)).




                                   - 11 -
             Severino's   argument       fails   under      either    standard    of

review.   To the extent Severino's challenge is procedural, we find

no fault in the court's evaluation of the Guidelines and required

sentencing     considerations.        "When      a   court    varies     from    the

[Guidelines] . . . the factors deemed relevant by the sentencing

court 'must add up to a plausible rationale' for the sentence

imposed   and    'must    justify    a    variance     of    the     magnitude    in

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

(1st Cir. 2013) (citation omitted).           "[T]hough a district court is

obliged to consider all relevant § 3553(a) factors, it need not do

so mechanically.        That is, a district court is not required to

address those factors, one by one, in some sort of rote incantation

when explicating its sentencing decision."             Ruiz-Huertas, 792 F.3d

at 226-27 (quotation marks and citation omitted).

             In addition, "the sentencing court may take into account

the characteristics of the community in which the crime took place

when   weighing    the    offense's      seriousness        and    the   need    for

deterrence."      United States v. Zapata-Vázquez, 778 F.3d 21, 23

(1st   Cir.     2015)     (citations       omitted).              "Community-based

considerations are inextricably intertwined with deterrence . . .

[and] the incidence of particular crimes in the relevant community

appropriately informs and contextualizes the relevant need for

deterrence."      Flores-Machicote, 706 F.3d at 23.                  "After all, a

heightened need for deterrence may well exist in a community where


                                    - 12 -
violent crime is running rampant."            United States v. Narváez-Soto,

773     F.3d     282,   286   (1st     Cir.     2014)       (citation      omitted).

"Nevertheless, '[a] sentencing judge's resort to community-based

characteristics does not relieve him or her of the obligation to

ground sentencing determinations in case-specific factors.                    It is

possible for a sentencing judge to focus too much on the community

and too little on the individual.'"                 Santa-Otero, 843 F.3d at

551-52    (citation     omitted).      "When    .   .   .    the   district   court

explicitly states that it has considered the § 3553(a) factors,

such a statement is entitled to some weight."                  Ruiz-Huertas, 792

F.3d at 227 (quotation marks, alterations, and citation omitted).

               Severino does not offer any evidence to suggest that the

district court improperly or incompletely considered § 3553(a)

factors or his personal circumstances.              See Santa-Otero, 843 F.3d

at 552 ("Because the District Court expressly took note of the

case-specific factors of [defendant's] criminal history and the

specific firearm and ammunition [he] possessed, the District Court

sufficiently emphasized the case-specific factors relative to the

community-based characteristics.").            The record indicates that the

court    did    so   explicitly,    noting     Severino's     lack    of   relevant

criminal history, acceptance of responsibility, age, education,

and history of employment.           Even if the emphasis on his personal

circumstances was not as apparent as Severino would have preferred,

"brevity is not to be confused with inattention.'"                   United States


                                      - 13 -
v. Santiago-Rivera, 744 F.3d 229, 233 (1st Cir. 2014) (quotation

marks and citation omitted).

            In addition, Severino appears to take umbrage with the

district    court's   statement   that     "the   Court   of   Appeals   has

indicated[] this Court must consider Puerto Rico's high firearms

and violent crime rate to impose the sentence in this case." While

the usage of the term "must" was an error, Severino fails to show

how that usage was prejudicial.            After all, district courts

regularly take into account "[c]ommunity-based considerations."

E.g., Flores-Machicote, 706 F.3d at 23.             The district court,

notwithstanding the usage of the word "must," clearly justified

the weight placed on this factor, noting the high level of violent

crime in Puerto Rico, and importance of "preventing criminal

behavior by the population at large, not just by the defendant

being sentenced."     Therefore, the error was harmless.

            To the extent Severino's challenge is substantive, with

the foregoing considerations in mind, the district court acted

well within its discretion in imposing a 40-month sentence on

Severino.   See Santiago-Rivera, 744 F.3d at 234 ("There is rarely,

if ever, a single correct sentence in any specific case.          Instead,

there is almost always a 'range of reasonable sentences' for any

given offense." (citation omitted)).




                                  - 14 -
          IV.   Conclusion

          For the foregoing reasons, the district court's sentence

is AFFIRMED.




                             - 15 -
