Not For Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 06-1075

UNITED STATES,

Appellee,

v.

HENRY A. ALVAREZ-CUEVAS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Daniel R. Domínguez, U.S. District Judge]

Before

Lipez, Circuit Judge,

 Campbell, Senior Circuit Judge,

and Howard, Circuit Judge.

Robert M. Thomas, Jr., Royston H. Delaney and Thomas &

Associates on brief for appellant.

Nelson Pérez-Sosa, Assistant U.S. Attorney and Rosa Emilia

Rodríguez-Vélez on brief for appellee.

January 4, 2007
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Per Curiam. Defendant-appellant Henry Alvarez-Cuevas

pled guilty, without a plea agreement, to one count of hostage

taking, in violation of 18 U.S.C. § 1203(a) (Count I), and one

count of using a firearm in relation to a crime of violence, in

violation of 18 U.S.C. § 924(c)(1) (Count II). He was originally

sentenced to 109 months' imprisonment on Count I and to the

statutory mandatory minimum of seven years on Count II. This court

vacated his original sentence on the ground that the sentencing

court had erred in applying U.S.S.G. § 2A4.1(b)(6) to enhance his

sentence on Count I, and remanded with instructions that in light

of the Court's intervening decision in United States v. Booker, 543

U.S. 220 (2005), "[t]he entire sentence is . . . subject to

reconsideration, not just the § 2A4.1(b)(6) enhancement." United

States v. Alvarez-Cuevas, 415 F.3d 121, 122 (1 Cir. 2005). st

Alvarez appeals from the sentence of 78 months' imprisonment

imposed on Count I on remand.

Alvarez' sole argument on appeal is that the district

court erred in denying his motion for preparation of a new

presentence investigation report (PSR) prior to resentencing. He

maintains that the court on resentencing should have "sought

further information in a revised, comprehensive pre-sentence report

addressing the hitherto prohibited or discouraged factors."

Appellant's Brief, p.8. The only such factors that appellant

specifically mentioned (age, education and lack of guidance as a
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youth), however, were addressed in the original PSR. No specific

mitigating facts related to those factors were raised at

resentencing or in appellant's brief.

At the resentencing hearing, defense counsel asked the

court to consider defendant's "history and characteristics" under

18 U.S.C. § 3553(a)(1). Specifically, defense counsel raised two

mitigating facts: 1) defendant's IQ and 2) defendant's role

relative to other participants. The court expressly took those

facts into account in arriving at a sentence in the middle of the

recalculated guideline range (70 - 87 months). Defense counsel

also asked the court to consider his client's psychological state.

However, that factor was addressed at length in the original PSR.

Neither at the resentencing hearing nor in his brief has

appellant identified any new information not already considered by

the sentencing judge which a new or revised PSR would have

provided. The information in the record, including the information

presented at the resentencing hearing, enabled the district court

to "meaningfully exercise its sentencing authority under 18 U.S.C.

§ 3553." Fed. R. Crim. P. 32(c)(i)(A)(ii). The court did not abuse

its discretion in denying the motion for preparation of a new PSR.

See United States v. Triestman, 178 F.3d 624, 633 (2d Cir. 1999).

Appellant's argument that the district court "simply

applied the guidelines as presumptively reasonable" is not

supported by the record. The court expressly stated that it was
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relying upon the § 3553 factors urged by appellant, based on facts

presented at resentencing regarding defendant's limited mental

capacity and his responsibility relative to other participants in

the offense. Post-Booker, "a district court should normally begin

with a guideline calculation, and . . . after considering

departures, the district court should decide whether 'other

factors' (beyond the guidelines) warrant[] an ultimate sentence

above or below the guideline range." United States v. Smith, 445

F.3d 1, 4 (1 Cir. 2006). The record indicates that the district st

court did just that, and provided a "plausible explanation and a

defensible overall result." United States v. Jiménez-Beltre, 445

F.3d 1, 4 (1 Cir. 2006). st

Appellant's conviction and sentence are affirmed. See 1st

Cir. R. 27(c).