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Boston, MA - Criminal defense lawyer represented defendant with a possessing a machine gun charge.

Because this appeal follows a guilty plea, we draw the
facts from the change-of-plea colloquy, the undisputed portions of
the PSR, and the transcript of the sentencing hearing. United
States v. Arias-Mercedes, 901 F.3d 1, 4 (1st Cir. 2018). In
January 2017, undercover police officers saw a man, later
identified as Contreras-Delgado, standing outside one of the
apartments in a public housing project in Bayamón, Puerto Rico.
Contreras-Delgado looked at the officers, asked “What’s going on
Man” (translation from Spanish), and lifted his arms, which exposed
a black gun with an extended magazine in his waistband. The
officers identified themselves and asked if Contreras-Delgado had
a firearms license; he replied that he did not. The officers
arrested Contreras and seized the gun. The gun —- a Glock 9-
millimeter (“mm”) pistol -— had been modified to fire multiple
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rounds with a single pull of the trigger and was fully loaded with
a 31-round extended magazine. At the time of arrest, the officers
found two more 9-mm magazines next to Contreras-Delgado: another
fully loaded 31-round magazine and a 17-round magazine with 15
rounds of ammunition.
Federal agents questioned Contreras-Delgado after
reading him his rights. Contreras-Delgado admitted that he sold
drugs and had purchased the gun that was in his waistband “for
protection.” He told the agents he knew the pistol was modified
to fire automatically “because he specifically asked for it to be
fully auto when he purchased it.” The firearm also had an
aftermarket barrel installed, was equipped with a high-capacity
31-round magazine, and incorporated a machine gun conversion
device designed to make semiautomatic Glock pistols fire
automatically. No ownership records for the gun could be found.
Contreras-Delgado was indicted for possessing a machine
gun, in violation of 18 U.S.C. § 922(o). He knowingly and
voluntarily entered a straight plea of guilty to possessing a
machine gun as alleged in the indictment. At the change-of-plea
hearing, Contreras-Delgado told the district court of his current
treatment for depression, though he remained competent to plead.
He also indicated that he understood that sentencing would be in
the discretion of the court and could differ from the guidelines
and/or the parties’ sentencing recommendations. Upon Contreras-
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Delgado’s motion, the judge issued an order permitting evaluation
of him by a clinical psychologist, Dr. Alexandra Ramos (“Dr.
Ramos”), in support of mitigation of sentence.
The U.S. Probation Office prepared a PSR1 that outlined
the offense conduct described above. Possession of a machine gun
carried a base offense level of 20; the PSR subtracted 3 levels
for acceptance of responsibility, yielding a total offense level
of 17.
Contreras-Delgado was twenty-two years old when he was
arrested for the instant offense. By that time, he had two
juvenile adjudications: one for pointing a bladed weapon at four
other children and threatening to stab them, and another for
stealing from his mother and threatening to kill both her and his
grandmother. He had also been arrested as an adult for two counts
of distributing a controlled substance, but those charges were
dismissed pursuant to Puerto Rico’s Speedy Trial Act. None of
these events counted for criminal history points under the
guidelines. Accordingly, the PSR used a Criminal History Category
of I, and calculated Contreras-Delgado’s GSR as 24 to 30 months’
imprisonment. Under the guidelines, Contreras-Delgado was
ineligible for probation. See U.S.S.G. § 5B1.1.

1 All references herein are to the amended PSR, filed on June 23,
2017, which contained some factual updates from the first PSR,
filed two weeks prior.
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The PSR then set forth at length Contreras-Delgado’s
personal history and characteristics, including his family
history, and his mother’s impression of his treatment needs: his
“volatile nature” plus “hyperactivity disorder . . . when combined
with his drug use, results in violent behavior. If he is under
treatment, he can control his impulses.” The PSR also included a
detailed summary of Contreras-Delgado’s mental and emotional
health, including a 2012 evaluation by a clinical psychologist and
2017 findings by the Bureau of Prisons Psychology Services.
In its concluding paragraph, the PSR noted that the
district court could “consider the following factors to impose a
sentence outside the advisory [g]uideline[]s”: Contreras-Delgado’s
history of substance abuse, his juvenile record, the fully loaded
weapon and additional magazines he possessed during the instant
offense, his admissions that he had sought out a fully automatic
firearm and that he sold drugs, and finally, that he was arrested
as part of an operation targeting drug point activities in a public
housing project.
Contreras-Delgado did not object to any portion of the
PSR. He did, however, submit a sentencing memorandum urging the
district court to focus on Contreras-Delgado’s rehabilitative
potential and recommending a non-GSR “alternative sentence,”
combining incarceration, probation, and supervised release.
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At sentencing, Contreras-Delgado sought to present
briefly the testimony of Dr. Ramos, the clinical psychologist who
evaluated him while he was in jail. The United States (“the
government”) offered instead to stipulate to the contents of the
report prepared by Dr. Ramos and its recommendation that ContrerasDelgado receive substance abuse treatment. The district court
approved the stipulations and ruled that there was no need for Dr.
Ramos to testify. The district court summarized Dr. Ramos’s
recommendation –- that Contreras-Delgado “receive substance abuse
treatment to address his problems with addiction and to prevent
relapses” -- and directed that the whole report be added to the
PSR. The district court also instructed that the PSR be modified
to include mental health treatment as one of the conditions.
Contreras-Delgado argued that a prolonged sentence of
imprisonment would not facilitate his rehabilitation. He
particularly “highlight[ed] from the sentencing memo [] the idea
that because of [his] age, a prolonged sentence of imprisonment
may not actually contribute to his rehabilitation.” The district
court pointed out that Dr. Ramos’s report contradicted that
statement: “[Dr.] Ramos says that he is in remission because of
his incarceration.” Contreras-Delgado disagreed and argued that
“it’s about all the environmental factors that go into what would
help someone rehabilitate.” The government agreed that ContrerasDelgado did “do well under a controlled environment,” but indicated
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that a “controlled environment” could be obtained in prison. The
government also explained that other sentencing factors strongly
favored a sentence of imprisonment, particularly the serious
nature of Contreras-Delgado’s offense and his prior offenses
involving threats of violence.
The parties agreed that Contreras-Delgado’s total
offense level was 17. The court then recounted the facts of
Contreras-Delgado’s juvenile offenses involving threats of
violence and noted Contreras-Delgado’s 2014 arrest for a
controlled substance offense. As the PSR explained, this meant
that Contreras-Delgado had no criminal history points. His GSR was
thus 24 to 30 months. Contreras-Delgado asked the court to depart
or vary downward from imposing a sentence of incarceration and
instead impose a combination of incarceration and home
confinement. The government, noting that Contreras-Delgado had a
machine gun in his waist and had prior contacts with the law,
recommended that the court impose a sentence of incarceration
within the GSR. The government indicated that the Bureau of
Prisons could provide a controlled environment as well as mental
health and substance abuse treatment.
Stating that it had considered the facts of ContrerasDelgado’s offense as well as the other sentencing factors set forth
in 18 U.S.C. § 3553(a), the district court determined that a
sentence above the GSR was appropriate. Specifically, the district
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court noted Contreras-Delgado’s age, employment, and substance
abuse history, reiterated the parties’ sentencing recommendations,
and explained that it had considered Contreras-Delgado’s “personal
characteristics, as well as the nature of the offense.” ContrerasDelgado’s machine gun “was loaded with a 31-round high capacity
magazine,” he had additional high-capacity magazines, he admitted
that he requested a fully automatic gun when he purchased it, and
he confessed to selling drugs. Those facts, plus ContrerasDelgado’s prior violent threats and the fact that he had not
reformed despite prior leniency, “move[d] the Court to impart a
sentence above the guideline range” to “reflect[] the seriousness
of the offense, promote[] respect for the law, protect[] the public
from further crimes by Mr. Contreras[-Delgado], and address[] the
issues of deterrence and punishment.” Accordingly, the court
sentenced Contreras-Delgado to 46 months’ imprisonment and three
years’ supervised release.
This appeal ensued.
II. DISCUSSION
A. Basic Principles.
As we detail below, Contreras-Delgado contends that the
46-month variant incarceration sentence was both procedurally and
substantively unreasonable. “We review sentencing decisions
imposed under the advisory Guidelines, whether outside or inside
the applicable GSR, for reasonableness.” United States v.
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Pantojas-Cruz, 800 F.3d 54, 58 (1st Cir. 2015) (citing United
States v. Turbides-Leonardo, 468 F.3d 34, 40 (1st Cir. 2006)).
This review incorporates two components directed at the appraisal
of procedural soundness and then substantive reasonableness of the
sentence. See Gall v. United States, 552 U.S. 38, 51 (2007);
United States v. Cox, 851 F.3d 113, 119-20 (1st Cir. 2017); United
States v. Gallardo-Ortiz, 666 F.3d 808, 811 (1st Cir. 2012). Thus,
first, we examine whether in arriving at the sentence, the district
court committed any procedural errors. United States v. Rossignol,
780 F.3d 475, 477 (1st Cir. 2015); Gallardo-Ortiz, 66 F.3d at 811.
Such missteps include “failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 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. “We
have described our abuse of discretion standard in this context as
‘multifaceted,’ as we apply clear error review to factual findings,
de novo review to interpretations and applications of the
guidelines, and abuse of discretion review to judgment calls.”
United States v. Nieves-Mercado, 847 F.3d 37, 42 (1st Cir. 2017).
While this court generally applies “the deferential abuse of
discretion standard to preserved challenges to the procedural
reasonableness of a sentence, . . . when a defendant fails to
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preserve an objection to the procedural reasonableness below [of
the sentence but asserts it on appeal], the plain error standard
supplants that customary standard of review.” United States v.
Gierbolini-Rivera, 900 F.3d 7, 12 (1st Cir. 2018); see United
States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir. 2015). The
plain error standard “is not easy to meet, because it requires
error, plainness, prejudice to the defendant and the threat of a
miscarriage of justice.” United States v. Torres-Rosario, 658
F.3d 110, 116 (1st Cir. 2011) (citing United States v. Olano, 507
U.S. 725, 732-36 (1993)).
If procedural soundness is established, we then proceed
to the second phase of our review, assessing the substantive
reasonableness of the sentence, “tak[ing] into account the
totality of the circumstances, including the extent of any variance
from the Guidelines range.” United States v. Bermúdez-Meléndez,
827 F.3d 160, 163 (1st Cir. 2016) (alteration in original) (quoting
Gall, 552 U.S. at 51). “In determining substantive reasonableness,
substantial respect is due to the sentencing court’s discretion.”
Id. This deferential approach recognizes that although “[a]
sentencing court is under a mandate to consider a myriad of
relevant factors, . . . the weighting of those factors is largely
within the court’s informed discretion.” United States v.
Clogston, 662 F.3d 588, 593 (1st Cir. 2011). For substantive
reasonableness, the linchpin is “a plausible sentencing rationale
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and a defensible result.” United States v. Pol-Flores, 644 F.3d
1, 4-5 (1st Cir. 2011) (quoting United States v. Martin, 520 F.3d
87, 96 (1st Cir. 2008)). Hence, “we limit our review to the
question of whether the sentence, in light of the totality of the
circumstances, resides within the expansive universe of reasonable
sentences.” United States v. King, 741 F.3d 305, 308 (1st Cir.
2014). While some circuits have found substantive reasonableness
claims preserved despite a lack of objection in the lower court,
and thus not reviewed for plain error, see United States v.
Hernández-Maldonado, 793 F.3d 223, 227 (1st Cir. 2015), in our
circuit the question remains open. See United States v. RondónGarcía, 886 F.3d 14, 26 (1st Cir. 2018); United States v.
Arsenault, 833 F.3d 24, 29 (1st Cir. 2016).
Even if plain error is not applied, considerable
deference must still be given to the district court’s judgment.
Clogston, 662 F.3d at 593. This “highly deferential . . . standard
remains in full force” even if the sentence is outside the
applicable GSR. United States v. Vázquez-Martínez, 812 F.3d 18,
26 (1st Cir. 2016) (quoting United States v. Santiago-Rivera, 744
F.3d 229, 234 (1st Cir. 2014)); see also Gallardo-Ortiz, 666 F.3d
at 811 (“A dramatic variance . . . cannot unduly influence our
review of substantive reasonableness.”). Accordingly, even when
the district court imposes a variant sentence, this court affords
“due deference to the district court’s decision that the § 3553(a)
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factors, on a whole, justify the extent of the variance.” Gall,
552 U.S. at 51.
B. Procedural Reasonableness.
Contreras-Delgado argues on appeal that the district court
abused its discretion in denying his request to present the live
testimony of Dr. Ramos, the clinical psychologist who had evaluated
him while he was in jail, and that this denial constitutes
procedural error because he was precluded from presenting
“information relevant to recidivism and rehabilitation . . . as
part of § 3553(a)’s sentencing factors.” He also asserts that
the court “overstated” the evidence of his prior violent threats.
Contreras-Delgado argues generally that the court did not
appropriately balance the § 3553(a) factors, thereby violating the
parsimony principle – the statutory directive that sentences
should be no higher than necessary to achieve the statutory goals
of sentencing. Specifically, Contreras-Delgado complains that the
court did not mention Contreras-Delgado’s mental characteristics,
such as depression and attention deficit hyperactivity disorder.
1.
Contreras-Delgado contends that the district court
abused its discretion when it did not allow the testimony of Dr.
Ramos at the sentencing hearing and further failed to consider
§ 3353(a) sentencing factors. The government counters that
Contreras-Delgado did not object to this denial and, thus, the
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appropriate standard of review is for plain error. It is well
established that articulating an objection is required in order to
preserve the most generous standard for a defendant. This not
only protects the interests of the defendant but also provides the
government with an opportunity to respond. Proper objection also
furthers the interests of judicial economy in that it assists
judicial decision-making. To be sure, the record would have been
cleaner if the talismanic “I object” formulation had been uttered.
At the same time, a review of the record leaves little doubt that
counsel sought to present the live testimony of the witness and
persisted in explaining why it was necessary even after it had
been denied. In any event, whether the standard of review be abuse
of discretion or plain error, we conclude that Contreras-Delgado’s
claim of procedural error cannot succeed.
First, we note that while a defendant enjoys a right to
due process at sentencing, United States v. Stile, 845 F.3d 425,
430 (1st Cir. 2017), and the right “to speak or present any
information to mitigate the sentence,” Fed. R. Crim. P.
32(i)(4)(A)(ii); see also Irizarry v. United States, 553 U.S. 708,
715 (2008), “a defendant has no right to insist on calling other
witnesses on his behalf.” Stile, 845 F.3d at 430. See United
States v. Cruzado-Laureano, 527 F.3d 231, 238 (1st Cir. 2008);
United States v. Heller, 797 F.2d 41, 43 (1st Cir. 1986). “The
rule only requires the court to allow the defendant and his
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attorney to speak.” Cruzado-Laureano, 527 F.3d at 238 (citing
Fed. R. Crim. P. 32(i)(4)(A)(i), (ii); United States v. Rodriguez,
336 F.3d 67, 70 (1st Cir. 2003)).
Here, the district court not only reviewed Dr. Ramos’s
report from the bench, but it summarized her recommendations and,
as reflected in the district court’s correction of counsel’s
interpretation, demonstrated command of its contents. Moreover,
Dr. Ramos’s entire report was included in the PSR, where, as the
district court noted, it could guide the Bureau of Prisons and
Probation as they determined appropriate treatment. Further,
Contreras-Delgado’s counsel fully explained to the court his view
that Dr. Ramos’s report supported a mitigation of the sentence
below the GSR. In sum, under any standard of review, ContrerasDelgado’s claim that substitution of Dr. Ramos’s report in lieu of
testimony constituted procedural error is not meritorious.2
2.
Contrary to Contreras-Delgado’s assertion, the district
court properly considered the § 3553(a) sentencing factors,

2 We note that the government also argues that Contreras-Delgado
consented to the substitution of Dr. Ramos’s report in lieu of her
live testimony, and that this consent constituted waiver, instead
of forfeiture, such that he may not revive his waived argument on
appeal. See generally United States v. Delgado-Sánchez, 849 F.3d
1, 6-7 (1st Cir. 2017) (reviewing waiver and forfeiture standards).
The record is open to a different interpretation. In any event,
we need not resolve the issue because, as we have indicated,
Contreras-Delgado’s claim fails. Id. at 7.
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including relevant mitigating and aggravating factors; its
weighing of those factors was well within its discretion. While
a sentencing court must consider all the incorporated § 3553(a)
factors, it “need not verbalize its evaluation of each and every
[§] 3553(a) factor.” United States v. Reyes-Rivera, 812 F.3d 79,
89 (1st Cir. 2016). Moreover, it “is not required to address the
§ 3553(a) factors one by one, in some sort of rote incantation
when explicating its sentencing decision, nor must the court afford
each of the § 3553(a) factors equal prominence.” United States v.
Sosa-González, 900 F.3d 1, 5 (1st Cir. 2018) (quoting United States
v. Vázquez-Vázquez, 852 F.3d 62, 66 (1st Cir. 2017)). Here, the
court expressly stated that it had considered the § 3553(a)
sentencing factors. That statement is “entitled to significant
weight.” United States v. Caballero-Vázquez, 896 F.3d 115, 120
(1st Cir. 2018) (quoting Santiago-Rivera, 744 F.3d at 233). It
also implicitly acknowledges awareness of and accordance with the
parsimony principle. Turbides-Leonardo, 468 F.3d at 41 (“[T]he
sentencing court in this case acknowledged its awareness of the
parsimony principle during the disposition hearing, stating that
it had taken [§] 3553(a) into account in arriving at the 48-month
sentence. On these facts, no more is exigible.”).
Moreover, the district court discussed the relevant
sentencing factors on the record. First, the district court
expressly considered Contreras-Delgado’s history and
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characteristics, including his age, employment, and substance
abuse history. Then, the court specified the facts it found
warranted a sentence above the applicable GSR: Contreras-Delgado’s
automatic weapon was loaded with a 31-round high-capacity magazine
and 31 rounds of ammunition; Contreras-Delgado had a second 31-
round high-capacity magazine, also fully loaded with 9-mm
ammunition for the automatic weapon; Contreras-Delgado had a third
high-capacity magazine, this one with 15 rounds of 9-mm ammunition;
Contreras-Delgado not only knew the weapon was fully automatic,
but specifically requested that modification when he purchased it;
Contreras-Delgado had previously benefited from leniency and the
“probation and programs offered by the Commonwealth of Puerto Rico
and the Court of Juvenile Affairs”; Contreras-Delgado admitted
selling drugs and had in fact been arrested -- though not convicted
-- for possession with intent to distribute marijuana and cocaine;
and Contreras-Delgado’s criminal history included “threatening to
kill children with a knife and threatening to kill his mother.”
Contreras-Delgado’s suggestion that the district court somehow
erred by characterizing these violent threats as violent behavior
is unavailing. See, e.g., United States v. Harden, 866 F.3d 768,
774 (7th Cir. 2017) (noting that a statutory “definition of violent
offense comports with a common-sense understanding of violent
conduct as the use or threat of physical force against another and
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is relevant as a guidepost as to a common definition of
‘violence.’” (emphasis added)).
These are all statutorily authorized sentencing
considerations; each of these facts relates to the nature and
circumstances of the offense (especially those not already
accounted for by the guidelines) or to Contreras-Delgado’s history
and characteristics. See 18 U.S.C. § 3553(a)(1). Basing
Contreras-Delgado’s sentences on these factors cannot constitute
procedural error, nor will this court “disturb a well-reasoned
decision” -- including the one here -- “to give greater weight to
particular sentencing factors over others.” United States v.
Santini-Santiago, 846 F.3d 487, 492 (1st Cir. 2017) (quoting United
States v. Gibbons, 553 F.3d 40, 47 (1st Cir. 2009)).
The district court expressly found that a sentence above
the GSR was further supported by the statutory sentencing
considerations of: “reflect[ing] the seriousness of the offense,
promot[ing] respect for the law, protect[ing] the public from
further crimes by Mr. Contreras[-Delgado], and address[ing] the
issues of deterrence and punishment.” That finding must be
afforded a high level of deference on appeal, regardless of the
standard of review applied. See Vázquez-Martínez, 812 F.3d at 26.
Contreras-Delgado’s claim “that the court erred by
relying on [negative factors] excessively” thus simply “amounts to
a disagreement with the district court’s weighing of the different
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sentencing factors.” United States v. Cruz-Vázquez, 841 F.3d 546,
550 (1st Cir. 2016). That the district court -- after careful
consideration of the statutory factors and explanation of its
reasoning -- weighed the factors differently than ContrerasDelgado is not error. United States v. Carrasco-de-Jesus, 589
F.3d 22, 29 (1st Cir. 2009).
All the potentially mitigating factors Contreras-Delgado
identifies on appeal were discussed in the PSR, in ContrerasDelgado’s sentencing memorandum, and/or at sentencing. “The
potentially mitigating factors [the defendant] identifies on
appeal were thoroughly discussed in the presentence report; that
the district court did not explicitly mention them during the
sentencing hearing suggests they were unconvincing, not ignored.”
United States v. Lozada-Aponte, 689 F.3d 791, 793 (1st Cir. 2012).
Moreover, although the district court did not recite
Contreras-Delgado’s mental health history, it did review Dr.
Ramos’s report and direct that it be added to the PSR, which
signals consideration of its contents. “The record . . . supports
the conclusion that the District Court simply focused on other
considerations that it implicitly deemed more important, including
the defendant’s history of violent behavior.” United States v.
Occhiuto, 784 F.3d 862, 869 (1st Cir. 2015). The fact that
Contreras-Delgado would have preferred that greater weight be
given to his psychological issues rather than to the seriousness
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of his criminal behavior is not a reason to vacate his sentence.
See, e.g., United States v. Arroyo-Maldonado, 791 F.3d 193, 201
(1st Cir. 2015) (finding no error where the defendant sought to
substitute his judgment for that of the sentencing court).
Regarding Contreras-Delgado’s prior behavior, the
district court did include a factually accurate comment that
Contreras-Delgado had been arrested, but not convicted, of
possessing drugs with intent to distribute them at the state level.
Contreras-Delgado separately admitted that he “sells drugs . . .
to make a living,” so it is undisputed that he committed drug
trafficking offenses not reflected in his criminal history score.
Thus, the district court did not run afoul of this court’s
admonition not to use mere arrests to “infer unlawful behavior
unless there is proof by a preponderance of the evidence of the
conduct” those charges allege. Rondón-García, 886 F.3d at 25)
(citing United States v. Cortés-Medina, 819 F.3d 566, 570 (1st
Cir. 2016)). The district court’s use of the phrase “[a]s usual”
to describe the dismissal of those drug-distribution charges did
not render Contreras-Delgado’s underrepresented criminal history
an impermissible consideration. See 18 U.S.C. § 3553.
Accordingly, Contreras-Delgado’s claim fails under any
standard of review. Even under the more defendant-friendly abuse
of discretion standard, Contreras-Delgado’s arguments fail because
his sentence was properly based on permissible § 3553(a) sentencing
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factors, and the allegedly mitigating factors were considered by
the district court. See Arroyo-Maldonado, 791 F.3d at 201.3
C. Substantive Reasonableness.
An inquiry into the substantive reasonableness of a
sentence must “take into account the totality of the circumstances,
including the extent of any variance from the Guidelines range.”
Gall, 552 U.S. at 51. “The hallmarks of a substantively reasonable
sentence are ‘a plausible sentencing rationale and a defensible
result.’” United States v. Zapata-Vázquez, 778 F.3d 21, 24 (1st
Cir. 2015) (quoting Martin, 520 F.3d at 96). Under the totality
of the circumstances here, Contreras-Delgado’s 46-month sentence
was substantively reasonable.
As has been noted, it is clear from the record that the
district court sufficiently considered the relevant § 3553
sentencing factors. See supra pp. 15-20. The court assessed the
dangerous nature and circumstances of the offense of conviction,
including the fact that the machine gun possession offense also
involved a substantial amount of ammunition and multiple highcapacity magazines, heightening the risk posed to the public.

3 Because Contreras-Delgado’s improper-weight arguments fail
regardless of the standard of review, it is immaterial whether
they are characterized as procedural or substantive arguments.
Cf. Caballero-Vázquez, 896 F.3d at 120 n.1 (noting that First
Circuit “precedent is less-than-clear as to whether a sentencing
court’s weighing of mitigating factors implicates procedural or
substantive reasonableness”).
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Moreover, Contreras-Delgado admitted committing other crimes
(specifically, selling drugs) for which he had never been punished,
despite having been previously arrested. That, as well as the
fact that Contreras-Delgado’s prior juvenile convictions for
threats of violence resulted in no criminal history points, support
the conclusion that the district court was well within its
discretion to believe that the GSR underrepresented ContrerasDelgado’s criminal history. “[A] district court may vary a
sentence upward in an effort to reflect past leniency.” United
States v. Santiago-González, 825 F.3d 41, 49 (1st Cir. 2016)
(citing United States v. Flores-Machicote, 706 F.3d 16, 21 (1st
Cir. 2013)). Indeed, the district court noted that despite his
prior brushes with the law, Contreras-Delgado had “benefited from
probation and programs” instead of imprisonment. The court thus
acted within the bounds of its discretion when it determined that
Contreras-Delgado’s offense —- when viewed in light of his history
—- warranted a variant sentence. See United States v. RomeroGalindez, 782 F.3d 63, 71-72 (1st Cir. 2015). “[D]eviation[s]
from the Guidelines ‘should typically be rooted either in the
nature and circumstances of the offense or the characteristics of
the offender.’” Id. (quoting Martin, 520 F.3d at 91)). Here,
the district court rooted its variant sentence in both.
We further note that the length of the sentence does not
make it per se unreasonable. “The district court evaluated the
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factors provided under 18 U.S.C. § 3553(a) and determined that an
above-guidelines sentence was appropriate.” Santini-Santiago, 846
F.3d at 492 (upholding a district court’s 18-month variance above
an applicable GSR of 12 to 18 months, partly due to the weight the
district court placed on the seriousness of the offense).
Contreras-Delgado’s sentence falls well within the “expansive
universe of substantively reasonable sentences.” United States v.
Matos-de-Jesús, 856 F.3d 174, 180 (1st Cir. 2017) (upholding a
sentence 15 months longer than the top end of the GSR). “Decisions
like these are within the sound discretion of sentencing courts,
and [this court] ‘will not disturb a well-reasoned decision to
give greater weight to particular sentencing factors over
others.’” Santini-Santiago, 846 F.3d at 492 (quoting Gibbons, 553
F.3d at 47).
In this case, Contreras-Delgado faced a statutory
maximum sentence of up to ten years of imprisonment. See 18 U.S.C.
§ 922(o). His actual sentence of less than four years is not only
defensibly within “the expansive boundaries of [the] universe” of
reasonable sentences, but also well within the statutory bounds of
the district court’s discretion, and represents a fraction of
Contreras-Delgado’s exposure. Martin, 520 F.3d at 92; see also
United States v. Díaz-Bermúdez, 778 F.3d 309, 313-14 (1st Cir.
2015) (comparing sentence to statutory maximum, and collecting
cases upholding variances several years above the guidelines).
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“[A]n increased sentence is necessarily a judgment call and, within
wide limits, deference is due to the trier’s on-the-spot
perceptions.” Arroyo-Maldonado, 791 F.3d at 198 (quoting United
States v. Vargas-Dávila, 649 F.3d 129, 131 (1st Cir. 2011)). We
thus defer to the district court’s reasoned decision that, under
the circumstances, Contreras-Delgado’s behavior warranted a 46-
month sentence.

Outcome: In sum, a sentence should be left intact so long as it
is procedurally sound and there is “a plausible sentencing
rationale and a defensible result.” Martin, 520 F.3d at 96; Gall,
552 U.S. at 49-50 (requiring individualized consideration and
adequate explanation for variances). The district court provided
individualized assessments of Contreras-Delgado’s conduct as well
as the other § 3553 factors, and reasonably explained the basis
for the sentence imposed.

We conclude that Contreras-Delgado’s sentence was
procedurally and substantively reasonable.

The sentence is affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: