United States Court of Appeals

For the First Circuit

Nos. 18-2107, 18-2207

UNITED STATES OF AMERICA,

Appellee,

v.

JOSHUA AYALA-LUGO,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

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

Before

Lynch and Barron,

Circuit Judges.*

Marie L. Cortés-Cortés on brief for appellant.

W. Stephen Muldrow, United States Attorney, Mariana E. BauzáAlmonte, Assistant United States Attorney, and Antonio L. PerezAlonso, Assistant United States Attorney, on brief for appellee.

April 29, 2021

* While this case was submitted to a panel that included Judge 

Torruella, he did not participate in the issuance of the panel's 

opinion. The remaining two panelists therefore issued the opinion 

pursuant to 28 U.S.C. § 46(d). 
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LYNCH, Circuit Judge. On March 22, 2018, Joshua 

Ayala-Lugo, a convicted felon on supervised release, pleaded 

guilty to one count of illegally possessing a firearm in violation 

of 18 U.S.C. § 922(g)(1). The district court sentenced him to a

within-guidelines sentence of forty-six months in prison for 

violating § 922(g)(1) to be served consecutively with an eighteenmonth sentence for violating the terms of his supervised release. 

Ayala-Lugo, arguing that both of these sentences were 

substantively and procedurally unreasonable, appeals. We affirm.

I. Facts and Procedural History

In 2008, Ayala-Lugo pleaded guilty to conspiring to

possess various controlled substances with intent to distribute 

them in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(C), 

(b)(2), and 860. On December 9, 2008, he was sentenced to ten 

years' imprisonment to be followed by six years of supervised 

release. He began his supervised release on July 19, 2017. 

About four months after his supervised release began, on 

November 15, 2017, Ayala-Lugo was arrested at a known drug point 

in Cataño, Puerto Rico while possessing a firearm and seventy-five

rounds of ammunition. Two days later, on November 17, 2017, 

Ayala-Lugo's probation officer notified the court that Ayala-Lugo 

had violated the terms of his supervised release. On November 20, 

2017, Ayala-Lugo was indicted by a grand jury for being a felon in 

possession of a firearm in violation of § 922(g)(l). 
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On March 22, 2018, Ayala-Lugo pleaded guilty to 

violating § 922(g)(l) and the district court accepted his plea. 

There was no plea agreement. 

The court held a sentencing hearing on October 17, 2018. 

It reviewed the probation officer's sentencing guidelines 

calculations, which reflected a total offense level of nineteen

and a criminal history category of III, and stated that the officer 

had correctly applied the guidelines. Based on these calculations, 

the guidelines imprisonment range for Ayala-Lugo's § 922(g)(l)

violation was thirty-seven to forty-six months. Ayala-Lugo did 

not object to this calculation. 

At sentencing, Ayala-Lugo's counsel requested a belowguidelines sentence of eighteen months. The government requested 

a low-end guidelines sentence of thirty-seven months. In support 

of his requested sentence, Ayala-Lugo's counsel presented a report 

produced by Dr. Alexandra Ramos (the "Ramos Report") saying that 

Ayala-Lugo has an intellectual disability. The Ramos Report was 

produced shortly before sentencing and was not included in the 

presentence investigation report ("PSR"), but at the sentencing 

hearing the court ordered the probation officer to amend the PSR 

to include it.1 Based on the report, Ayala-Lugo asked the court 

1 The Ramos Report was created after Ayala-Lugo had 

requested that his sentencing be delayed "in order to allow for 

[a] psychological examination and submission of [a] defense 

sentencing memorandum." The court granted this request, and the 
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to consider, under U.S.S.G. § 5K2.13, a downward departure from 

the guidelines range because of Ayala-Lugo's alleged diminished 

capacity. The government contested this departure, arguing that 

Ayala-Lugo had a consensual relationship with the same partner for 

at least 15 years and had worked for over a year as a barber, 

showing that he had "been operating and living a more or less 

normal life." It also told the court that, in connection with his 

2008 conviction, Ayala-Lugo had been "in charge of maintaining and 

distributing narcotics at the drug point to the sellers" and "would 

also collect the proceeds," showing that he had higher-level 

responsibilities and "was the person that someone at a higher 

position trusted." Ayala-Lugo also argued for a lower sentence 

because "there is a sentencing disparity when you compare Puerto 

Rico sentences with national sentences" and because other courts 

are "disavow[ing] the guidelines and are pinning down sentences 

that are lower than the guidelines." The court said that the 

defense's sentencing memorandum "was very well written, very 

thorough, and [that it was] certainly considering it." 

Ramos Report was produced two weeks before sentencing occurred on 

October 17, 2018. The PSR did not include it because the PSR was 

prepared in April 2018. The court told Ayala-Lugo's counsel that 

it was "going to include [the Ramos Report] in the [PSR]" and that 

he had given "a very good explanation of what's in that report." 

The government did not object to including the Ramos Report in the 

PSR. 
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After hearing both sentencing requests, the court 

explained the factors leading to the calculation of Ayala-Lugo's 

guidelines sentence. When discussing Ayala-Lugo's criminal 

history, in addition to mentioning his past convictions, the court 

stated without further comment that Ayala-Lugo had been 

adjudicated as a juvenile and had been arrested in connection with 

certain incidents that did not result in convictions. It then 

stated that "a guideline sentence in this case is appropriate" and 

sentenced Ayala-Lugo to forty-six months' imprisonment, the high 

end of the guidelines range, to be followed by a three-year term 

of supervised release. It said that in reaching its conclusion it 

had considered the "sentencing factors set forth in [18 U.S.C. 

§ 3553(a)], defense counsel's thorough argument, the government's 

argument," and "the report from Dr. Ramos." 

Ayala-Lugo's counsel objected to the sentence "on 

substantive and procedural grounds, specifically the Court's 

unwillingness to . . . give us the departure or variance based on 

the diminished capacity." In response, the court stated that it

"spoke with the probation officer, and his original recommendation 

[before seeing the Ramos Report] was above the guidelines. And it 

was because of Dr. Ramos' report that he convinced me to give a 

guideline sentence." 

Immediately after the hearing described above, the court 

sentenced Ayala-Lugo for violating the terms of his supervised 
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release. Ayala-Lugo's counsel argued that the court should 

consider that the § 922(g)(l) sentence "represents and includes an 

enhancement for being on supervision" and requested that any 

sentence based on the supervised release violation be served 

concurrently with Ayala-Lugo's earlier sentence. The government 

requested a midlevel guidelines sentence. The court stated that 

the guidelines imprisonment range for this offense was four to ten

months, which Ayala-Lugo did not challenge, but that the "guideline 

sentence does not reflect the seriousness of Mr. Ayala's breach of 

trust and does not promote respect for the law." The court 

explained that Ayala-Lugo "has demonstrated an inability to live 

a law-abiding lifestyle, as evidenced by becoming involved in new 

criminal conduct just four months after his supervised release 

term commenced" and that "a guideline sentence does not protect 

the public." It stated that pursuant to 18 U.S.C. § 3583(e)(3), 

because Ayala-Lugo was on supervised release for a class A felony, 

it could impose a sentence of not more than five years. It then 

sentenced Ayala-Lugo to eighteen months' imprisonment for 

violating the terms of his supervised release to be served 

consecutively to the forty-six month sentence the court had imposed 

earlier. Ayala-Lugo's attorney stated that "[t]he defense objects 

to the Court's sentence on the violation of supervision as 

procedurally and substantively unreasonable" but made no further 

argument on this point.
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Ayala-Lugo timely appealed his sentence for violating 18 

U.S.C. § 922(g)(l). He timely appealed his revocation sentence 

after the district court granted his motion for an extension of 

time to do so. 

II. Analysis

Our review of a district court's sentence for 

reasonableness has a procedural and substantive component. See

United States v. Politano, 522 F.3d 69, 72 (1st Cir. 2008). The 

procedural inquiry asks whether the district court made any errors 

like "failing to calculate (or improperly calculating) the 

Guidelines range, treating the Guidelines as mandatory, failing to 

consider the [18 U.S.C.] § 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." Id. (alteration in original) (quoting 

Gall v. United States, 552 U.S. 38, 51 (2007)). If the sentence 

is procedurally sound, we then consider the totality of the 

circumstances to review its substantive reasonableness. Id. "[W]e 

will vacate a procedurally correct sentence as substantively 

unreasonable only if it lies 'outside the expansive boundaries' 

that surround the 'universe' of reasonable sentences." United 
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States v. Coombs, 857 F.3d 439, 452 (1st Cir. 2017) (quoting United 

States v. Matos-de-Jesús, 856 F.3d 174, 180 (1st Cir. 2017)). 

Generally, we review sentencing decisions for abuse of 

discretion. See United States v. Arroyo-Maldonado, 791 F.3d 193, 

197 (1st Cir. 2015). However, if "a defendant fails to preserve 

an objection below, the plain error standard supplants the 

customary standard of review." Id. (quoting United States v. 

Fernández–Hernández, 652 F.3d 56, 71 (1st Cir. 2011)). To prevail 

on plain error review, the defendant must show "(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." Id. (quoting United States v. Medina–

Villegas, 700 F.3d 580, 583 (1st Cir. 2012)).

A. Ayala-Lugo's 18 U.S.C. § 922(g)(l) Sentence

Ayala-Lugo argues the court made three procedural errors 

related to his § 922(g)(l) sentence. First, he argues the court 

erred because it "made no findings concerning arguments for a 

variance based on [Ayala-Lugo's] cognitive impairment" and chose 

to "automatically apply the guidelines and impose a sentence in 

the higher end" of the guidelines sentencing range. Because AyalaLugo objected to the district court's decision not to reduce his 
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sentence due to his alleged diminished capacity, we review that 

argument for abuse of discretion. 

The court said on multiple occasions that it considered 

Ayala-Lugo's argument on this point. It described his counsel's 

memorandum as "very thorough and very informative." The court 

said that it chose not to apply an upward variance to Ayala-Lugo's 

sentence because of the Ramos report detailing his diminished 

capacity. It also explained that its guidelines sentence "protects 

the public from further crimes by Mr. Ayala." Cf. U.S.S.G. 

§ 5K2.13 (stating that a downward departure for diminished 

capacity is not appropriate if the defendant's offense or criminal 

history "indicate a need to protect the public"). The court did 

not automatically apply a guidelines sentence and there was no 

procedural error in refusing to grant a downward departure.

Ayala-Lugo's next two arguments are that the court 

procedurally erred when it failed to explain why it rejected his 

§ 3553(a)(6) sentencing disparity argument and when it allegedly 

relied on his past arrests (which did not result in convictions) 

at sentencing. Because he did not preserve these issues, we review 

for plain error. Arroyo-Maldonado, 791 F.3d at 197. 

As to the court's alleged failure to address 

Ayala-Lugo's sentencing disparity argument, the court stated that 

it considered all of the § 3553(a) factors, a statement that is 

"entitled to significant weight." United States v. Santiago-
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Rivera, 744 F.3d 229, 233 (1st Cir. 2014). It "need not verbalize 

its evaluation of each and every [§] 3553(a) factor." United 

States v. Hassan-Saleh-Mohamad, 930 F.3d 1, 7 (1st Cir. 2019) 

(alteration in original) (quoting United States v. Reyes-Rivera, 

812 F.3d 79, 89 (1st Cir. 2016)). Further, the district court did 

explain its rejection of the sentencing disparity argument. It 

stated that how other districts handle sentencing is "up to them," 

that "[t]hey just think that in many cases it's appropriate to 

sentence someone below the guidelines," and that "[m]aybe they 

should start sentencing within the guidelines range, and [their] 

large amount of offenses may go down, like they are going down 

here." There was no plain procedural error. 

As to Ayala-Lugo's arrests, the court merely recited 

them at sentencing and noted that they did not result in 

convictions. It did not rely on them in imposing its sentence, so 

it did not err. See United States v. Rodríguez-Reyes, 925 F.3d 

558, 563 (1st Cir. 2019); United States v. Mercer, 834 F.3d 39, 

49–50 (1st Cir. 2016).

Ayala-Lugo's argument that his sentence was 

substantively unreasonable also fails. His within-guidelines 

sentence is presumptively reasonable and, to succeed, he "must 

adduce fairly powerful mitigating reasons and persuade us that the 

district court was unreasonable in balancing pros and cons." 

United States v. Cortes-Medina, 819 F.3d 566, 572 (1st Cir. 2016) 
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(quoting United States v. Clogston, 662 F.3d 588, 593 (1st Cir. 

2011)). The district court explained that its guidelines sentence 

was "appropriate taking into consideration everything the Court 

has mentioned, Mr. Ayala's prior involvement with the criminal 

justice system, the report from Dr. Ramos, [and] the information 

contained in the pre-sentence investigation report." In 

particular, it emphasized that Ayala-Lugo had committed a new crime 

after being on supervised release for only four months. Because 

the court gave a "plausible sentencing rationale and [reached] a 

defensible result," its sentence is substantively reasonable. 

United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008).

B. Ayala-Lugo's Supervised Release Violation Sentence

Next, Ayala-Lugo challenges the procedural and 

substantive reasonableness of his supervised release violation

sentence.2 We apply plain error review, as Ayala-Lugo made only 

"a general objection" to the reasonableness of his sentence, which 

is "'not sufficient to give the district court notice of the 

specific issue raised' on appeal." United States v. Hurley, 842 

2 The government argues that Ayala-Lugo's appeal of this 

sentence was untimely because he filed a notice of appeal fortyone days after judgment was entered. See Fed. R. App. P. 

4(b)(1)(A)(i); United States v. Gonzalez-Rodriguez, 777 F.3d 37, 

40 (1st Cir. 2015). However, Ayala-Lugo sought and received an 

extension of time from the district court to file a notice of 

appeal, so his appeal was timely. See Fed. R. App. P. 4(b)(4). 
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F.3d 170, 173 (1st Cir. 2016) (quoting United States v. Ríos–

Hernández, 645 F.3d 456, 462 (1st Cir. 2011)). 

Ayala-Lugo argues that his revocation sentence was 

procedurally unreasonable because the court did not consider his 

argument "that the underlying offense was already accounted for in 

the guidelines calculations" or his recommendation "that the

[revocation] sentence be concurrent with the sentence imposed for 

the underlying offense" (emphasis omitted). But the court did 

consider and reject that argument and recommendation at 

sentencing. It said it was not persuaded because the fact that 

his § 922(g)(l) guidelines sentence was enhanced because he was on 

supervised release "happens in every case." See Coombs, 857 F.3d 

at 451 ("[T]here is no legal impediment in sentencing the defendant 

both as a criminal and as a supervised release violator.").

His sentence was also substantively reasonable. The 

court explained that it had considered the factors in 18 U.S.C. 

§ 3553(a) and the guidelines calculation. It emphasized that 

Ayala-Lugo had committed a new crime only four months after his 

supervised release term began, demonstrating "an inability to live 

a law-abiding lifestyle." It reasoned that because a guidelines 

sentence "does not reflect the seriousness of Mr. Ayala's breach 

of trust[,] does not promote respect for the law," and "does not 

protect the public from further crimes by Mr. Ayala," an 18-month 

sentence was appropriate. That sentence was well below the five-
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year statutory maximum applicable here. See 18 U.S.C. 

§ 3583(e)(3). The court's reasoning was plausible, and it reached 

a defensible result. See Martin, 520 F.3d at 96.

III. Conclusion

Affirmed.