          United States Court of Appeals
                        For the First Circuit


Nos. 17-1761, 17-1762

                    UNITED STATES OF AMERICA,

                               Appellee,

                                  v.

                        ROBERTO CRUZ-OLAVARRIA,

                         Defendant, Appellant.


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

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


                                Before

                 Torruella, Lipez, and Kayatta,
                         Circuit Judges.


     Alejandra Bird López on brief for appellant.
     Rosa   Emilia  Rodríguez-Vélez,   United   States   Attorney,
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Thomas F. Klumper, Assistant United States
Attorney, Senior Appellate Counsel, on brief for appellee.


                            March 27, 2019
            LIPEZ, Circuit Judge. Roberto Cruz-Olavarria challenges

two separate terms of imprisonment: his 120-month sentence for

possessing a machine gun, and a consecutive 24-month sentence for

violating conditions of supervised release related to an earlier

conviction for possessing a machine gun.         Because an appellate

waiver provision in Cruz-Olavarria's plea agreement bars us from

reviewing the sentence imposed on the new charges, we address the

merits only of his revocation sentence.        As to that sentence, we

find no error and therefore affirm.

                                     I.

            In June 2012, Cruz-Olavarria pled guilty to unlawfully

possessing a firearm that was modified to shoot automatically --

i.e., a machine gun, as defined by federal law.         See 18 U.S.C.

§ 922(o) (criminalizing unlawful possession of a machine gun);

26 U.S.C.    § 5845(b)   (defining    "machinegun").   He   received   a

sentence of 36 months' imprisonment and three years of supervised

release.    More than halfway through his supervised release term,

in September 2016, Puerto Rico police officers assigned to the San

Juan Drug Unit arrested Cruz-Olavarria at a housing project after

seeing him drop a plastic bag and finding in his waistband a

modified pistol that federal law classifies as a machine gun.          A

fully loaded, fifteen-round capacity magazine was attached to the

pistol.    In his back pocket, Cruz-Olavarria had two thirteen-round

capacity magazines, one fully loaded and one with twelve rounds.


                                 - 2 -
Officers     also    recovered   the    plastic    bag,   which    contained

twenty-three hand-rolled marijuana cigarettes.1

            In a five-count superseding indictment issued in October

2016,      Cruz-Olavarria      was     charged     with   (1)      being      a

felon-in-possession of a firearm and ammunition (Count One), (2)

illegal possession of a machine gun (Count Two), (3) possession

with intent to distribute drugs (Count Three), and (4) possession

of firearms in furtherance of a drug trafficking crime (Counts

Four and Five).       Cruz-Olavarria agreed to plead guilty to Counts

One and Two, and the government agreed in return to dismiss the

remaining counts.

            The     Sentence   Recommendation     provision   of   the     plea

agreement stated:

                 After due consideration of the relevant
            factors enumerated in 18 U.S.C. §3553(a) and
            after considering that the parties have agreed
            that Counts Three through Five will be
            dismissed ([one of] which carried a minimum
            sentence of 30 years of imprisonment), the
            parties agree that as to Counts One and Two,
            the defendant will request a sentence of no
            less than ninety-six (96) months and the
            United States may request a sentence of up to
            one   hundred    twenty   (120)    months   of
            imprisonment.

     1 The relevant facts in this case are largely undisputed,
although Cruz-Olavarria questions on appeal the statement -- drawn
from the summary of offense conduct in his Presentence
Investigation Report ("PSR") -- that he had been in possession of
the plastic bag retrieved by the officers. However, Cruz-Olavarria
did not object to the PSR's account, and we therefore rely on it
in setting out the background. See United States v. De la Cruz-
Gutiérrez, 881 F.3d 221, 223 (1st Cir. 2018).


                                     - 3 -
The plea agreement also contained a Waiver of Appeal provision:

"The defendant knowingly and voluntarily waives the right to appeal

the judgment and sentence in this case, provided that the Defendant

is sentenced in accordance with the terms and conditions set forth

in the Sentence Recommendation provisions of this Plea Agreement."

          The     district   court    sentenced     Cruz-Olavarria   to   120

months' imprisonment -- the statutory maximum -- for the new

criminal conduct.2     The Guidelines range for those crimes, based

on his acceptance of responsibility and Criminal History Category

("CHC") of III, was 30 to 37 months' imprisonment.             In explaining

the sentence, the court emphasized the special danger posed by

machine guns, referenced Cruz-Olavarria's possession of marijuana,

and noted that "he possessed the machine gun in further[ance] of

a drug trafficking crime."      The court observed that it would have

imposed a sentence greater than 120 months but for the statutory

limit,   having     concluded    that        the   statutory   maximum    was

insufficient to reflect, inter alia, the seriousness of the offense

and the need to deter and punish Cruz-Olavarria.

          Immediately after Cruz-Olavarria's sentencing on the new

criminal charges, in the same proceeding, the district court




     2 At the government's request, pursuant to the plea agreement,
the court dismissed Counts Three, Four, and Five of the superseding
indictment.



                                     - 4 -
separately      considered      the     revocation     sentence.3         Because

Cruz-Olavarria's violation of his supervised release conditions

included possession of a machine gun, the violation was classified

as Grade A, the most serious type. See U.S.S.G. § 7B1.1(a); United

States   v.    Tanco-Pizarro,     892    F.3d   472,   475    (1st   Cir.   2018)

(describing the three violation grades).                His Guidelines range

(based   on    his   CHC   of   I)    was   therefore    12    to    18   months'

imprisonment, see U.S.S.G. § 7B1.4(a),4 and he was subject to a

statutory maximum term of two years, see 18 U.S.C. § 3583(e)(3).

              Defense counsel urged the court to run the revocation

sentence concurrently with the sentence for the new crimes.                   She

emphasized that Cruz-Olavarria had "complied with most of his

supervision conditions," and she further noted that his difficult

childhood and learning disabilities had limited his education and

employment opportunities.         The government requested "a guideline




     3 The district court is authorized by statute to impose a term
of imprisonment upon revocation of a term of supervised release.
See 18 U.S.C. § 3583(e)(3). When doing so, the court is directed
to consider some, but not all, of the sentencing factors listed in
18 U.S.C. § 3553(a), including the nature and circumstances of the
offense, the defendant's history and characteristics, and the need
to deter future crime and protect the public. Id.; see also, e.g.,
United States v. Soto-Soto, 855 F.3d 445, 450 (1st Cir. 2017).

     4 Although Cruz-Olavarria's CHC for the 2016 crimes was III,
the CHC of I for the supervised release violation was based on
"the category determined at the time the defendant originally was
sentenced to the term of supervision." U.S.S.G. § 7B1.4 cmt. n.1.


                                      - 5 -
sentence . . . to run consecutively" and suggested 12 months as

"adequate" for "the breach of trust."

            The court rejected both recommendations and again varied

from the Guidelines to impose the statutory maximum 24-month

sentence to run consecutively to the just-imposed 120-month term.

The court observed, inter alia, that Cruz-Olavarria "has shown

that he is unable to comply with the law," "demonstrates a blunt

disregard for the conditions imposed by the [c]ourt and has no

concern for public safety."         The court referenced the sentencing

factors set forth in 18 U.S.C. § 3553(a) and stated that a sentence

at   the   statutory     maximum   was   appropriate   "[t]o      reflect   the

seriousness of the offense, promote respect for law, provide just

punishment for the offense, . . . afford adequate deterrence[,]

and to protect the public from further crimes" by Cruz-Olavarria.

            On    appeal,     Cruz-Olavarria    contests   both    sentences,

arguing that he is entitled to resentencing because the district

court failed to adequately support either upward variance from the

Guidelines.

                                      II.

A. Waiver of Appeal

            In challenging his 120-month sentence for the crimes

charged    in    the   2016   indictment,    Cruz-Olavarria    confronts    the

threshold barrier of the waiver of appeal in his plea agreement.

He maintains that the waiver does not apply because he acquiesced


                                     - 6 -
only to a term of 96 months.             He points out that the plea agreement

did not contain a joint recommendation accepted by both parties,

and he asserts that the waiver provision "in no way represents a

concession by the defense that the 120 month sentence that the

government reserved the right to advocate [for] . . . would be

reasonable or acceptable."               This attempt to avoid the waiver is

unavailing.

             Under      First       Circuit          precedent,         a     sentencing

recommendation provision such as the one in Cruz-Olavarria's plea

agreement    establishes        a   range      for    an    appellate       waiver   that

incorporates both parties' proposals.                 See, e.g., United States v.

Morales-Arroyo, 854 F.3d 118, 119-20 (1st Cir. 2017) (noting

defendant's     recommendation            of    96    months      and       government's

recommendation of 144 months, and observing that defendant "waived

his right to appeal as long as he received a sentence between 96

and 144 months"); United States v. Betancourt-Pérez, 833 F.3d 18,

22 (1st Cir. 2016) (referencing "the 60-to-120-month range" where

plea agreement permitted defendant to request 60-month sentence

and government to request up to 120 months).                           Employing that

approach,    the     sentencing      provision        in     Cruz-Olavarria's        plea

agreement    created     a   recommended          range     of   96   to    120   months'

imprisonment, and his sentence of 120 months thus falls within the

scope   of   the     waiver.        We   therefore         dismiss    the    portion   of




                                          - 7 -
Cruz-Olavarria's appeal challenging his sentence for the 2016

crimes.

B. Revocation Sentence

               Cruz-Olavarria asserts that his variant sentence for

violating his conditions of supervised release is unlawful because

the    district     court    failed    to    identify     how   his   circumstances

"differ[ed] from the ordinary situation covered by the guidelines

calculation."        United States v. Zapete-Garcia, 447 F.3d 57, 60

(1st Cir. 2006).          Although a complaint about the adequacy of the

court's explanation for a variance is often construed as a claim

of procedural unreasonableness, see Gall v. United States, 552

U.S. 38, 51 (2007); United States v. Contreras-Delgado, 913 F.3d

232, 238 (1st Cir. 2019), Cruz-Olavarria frames his challenge in

substantive terms.          In effect, he argues that the "large variance

from     the    guidelines       range"      is    unjustifiable      and,    hence,

substantively unreasonable.             Accordingly, we follow his lead and

focus solely on the substantive issue.

               In   evaluating    the       substantive    reasonableness      of   a

sentence, "we proceed under the abuse of discretion rubric, taking

account of the totality of the circumstances," United States v.

Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir. 2015), "including the

extent     of       any     variance        from    the     Guidelines       range,"

Contreras-Delgado, 913 F.3d at 239 (quoting United States v.

Bermúdez-Meléndez, 827 F.3d 160, 163 (1st Cir. 2016)); see also


                                        - 8 -
id. (noting that, "[i]n determining substantive reasonableness,

substantial respect is due to the sentencing court's discretion"

(quoting Bermúdez-Meléndez, 827 F.3d at 163)).5         The central

inquiry is whether the sentence "reflect[s] both a plausible

sentencing rationale and a defensible result."     United States v.

Nuñez, 840 F.3d 1, 7 (1st Cir. 2016).    Both criteria are met here.

          The district court did not expound at length on its

reasons for deviating from the Guidelines during the revocation

portion of the sentencing hearing.      Nonetheless, its explanation

in context was more than sufficient to satisfy the plausibility

requirement.   Only minutes earlier, in sentencing Cruz-Olavarria

for the new criminal conduct, the court had emphasized the severity

of the new crimes -- which also constituted the violations of

supervised release.   The court not only made clear its view that

machine guns are distinctively dangerous,6 but it also highlighted


     5 We bypass the government's contention that Cruz-Olavarria's
challenge to his sentence deserves only plain error review. The
proper   standard    of   review   for   unpreserved   substantive
reasonableness claims remains an open question in our circuit, see
Contreras-Delgado, 913 F.3d at 239, and the outcome here does not
depend on the standard.

     6 The district court read aloud the following language from a
Ninth Circuit case, United States v. Henry:

          A modern machine gun can fire more than 1,000
          rounds per minute, allowing a shooter to kill
          dozens of people within a matter of seconds.
          Short of bombs, missiles, and biochemical
          agents, we can conceive of few weapons that
          are more dangerous than machine guns.


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that the new crimes included unlawful possession of a machine gun

-- i.e., the same crime for which Cruz-Olavarria was serving the

term of supervised release.     See, e.g., Tanco-Pizarro, 892 F.3d at

482 (affirming 500% upwardly variant revocation sentence where,

inter alia, defendant was charged as a felon in possession "while

on supervised release for an earlier gun-related offense").           The

court's   comments   about    Cruz-Olavarria's    repetitive   dangerous

conduct carried over to the court's explanation for finding that

the Guidelines range of 12 to 18 months did not fully account for

the seriousness of his supervised release violations.

           In   addition,    although   the   drug-related   counts   were

dropped as part of the plea deal, the district court could properly




           . . . Outside of a few government-related
           uses, machine guns largely exist on the black
           market.

           In short, machine guns are highly "dangerous
           and unusual weapons" that are not "typically
           possessed by law-abiding citizens for lawful
           purposes."

688 F.3d 637, 640 (9th Cir. 2012) (quoting Dist. of Columbia v.
Heller, 554 U.S. 570, 625, 627 (2008)) (other citation omitted).
All of the firearms and devices triggering a Grade A supervised
release violation under the Guidelines are considered "inherently
dangerous." United States v. Bishop, 453 F.3d 30, 31 (1st Cir.
2006) (quoting U.S.S.G. supp. app. C, amend. 674, at 134 (2004));
see U.S.S.G. § 7B1.1(a).     However, the district court could
reasonably view machine guns as more problematic than other, non-
automatic weapons covered by the same Guidelines provision. See
26 U.S.C. § 5845(a) (including among such firearms short-barreled
shotguns and rifles, and silencers).


                                 - 10 -
consider   the   unchallenged   facts    surrounding   Cruz-Olavarria's

arrest contained in the Presentence Investigation Report ("PSR").

See United States v. Severino-Pacheco, 911 F.3d 14, 20 (1st Cir.

2018) (noting that, absent objections from the defendant, "a PSR

bears sufficient indicia of reliability to permit the district

court to rely on it at sentencing" (quoting United States v. Cyr,

337 F.3d 96, 100 (1st Cir. 2003))).       Cruz-Olavarria's possession

of drugs also was cited as an additional supervised release

violation in the Probation Office's motion seeking an arrest

warrant.

           We have observed that a court's reasons for imposing a

variant sentence "should typically be rooted either in the nature

and circumstances of the offense or the characteristics of the

offender."   United States v. Fuentes-Echevarria, 856 F.3d 22, 26

(1st Cir. 2017) (quoting United States v. Flores-Machicote, 706

F.3d 16, 21 (1st Cir. 2013)).      In this case, the district court

relied on both: the highly dangerous, repeated possession of a

machine gun and Cruz-Olavarria's seeming lack of concern for public

safety.7   Given those factors, the variant sentence imposed -- six


     7 Although the district court did not expressly link its
concerns about machine guns and Cruz-Olavarria's disregard for
public safety to the prevalence of firearms and violent crime in
Puerto Rico, Cruz-Olavarria's PSR noted that the court "may
consider Puerto Rico's high firearms and violent crime rate to
impose the sentence."    See, e.g., United States v. Hernández-
Ramos, 906 F.3d 213, 214 (1st Cir. 2018) (noting that "Puerto
Rico's continuing experience with gun violence" is "a permissible


                                - 11 -
months above the 18-month high end of the Guidelines range -- was

not "outside the 'expansive boundaries' of the entire range of

reasonable sentences."       United States v. Vargas-Dávila, 649 F.3d

129, 130 (1st Cir. 2011) (quoting United States v. Martin, 520

F.3d 87, 92 (1st Cir. 2008)); see Contreras-Delgado, 913 F.3d at

239 ("[E]ven when the district court imposes a variant sentence,

this court affords 'due deference to the district court's decision

that the § 3553(a) factors, on a whole, justify the extent of the

variance.'" (quoting Gall, 552 U.S. at 51)).         Put another way, the

district court "articulated 'a plausible sentencing rationale' and

reached 'a defensible result.'"         United States v. Matos-de-Jesús,

856 F.3d 174, 179 (1st Cir. 2017) (quoting Martin, 520 F.3d at

96).   Detecting no abuse of discretion, we affirm the court's

imposition of a 24-month revocation term of imprisonment.

             For   the   foregoing    reasons,   Appeal   No.   17-1762   is

dismissed.    The sentencing judgment underlying Appeal No. 17-1761

is affirmed.




sentencing consideration[,] provided the court does not 'ignore [a
defendant's] individual circumstances'" (second alteration in
original) (quoting United States v. Laureano-Pérez, 892 F.3d 50,
52 (1st Cir. 2018))).


                                     - 12 -
