Not for Publication in West's Federal Reporter 

United States Court of Appeals 

For the First Circuit 

No. 15-2549 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

JOSE M. LASANTA-SANCHEZ, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

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

Before 

Howard, Chief Judge, 

Lipez and Thompson, Circuit Judges. 

Johnny Rivera-Gonzalez on brief for appellant. 

 Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana 

E. Bauzá-Almonte, Assistant United States Attorney, Chief, 

Appellate Division, and Francisco A. Besosa-Martínez, Assistant 

United States Attorney, on brief for appellee. 

March 20, 2017 
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THOMPSON, Circuit Judge. The defendant, Jose M. 

Lasanta-Sanchez (Lasanta), raises two issues in this appeal from 

the sentence imposed by the district court for Lasanta's violation 

of his supervised-release conditions. Because Lasanta waived one 

claim and the other is meritless, we affirm. 

HOW THE CASE GOT HERE 

In 2010, Lasanta pled guilty to possession of a 

machinegun and was sentenced to imprisonment for twenty-one 

months, with a three-year supervised release term to follow. Just 

over six months after his release, Lasanta was up to his old 

tricks. The United States Probation Office (Probation Office) 

searched Lasanta's home and vehicle and uncovered yet another 

machinegun and ammunition. 

Lasanta's latest transgression had serious consequences. 

First, in a separate criminal case, Case No. 14-063, he pled guilty 

to possession of a firearm by a felon and was sentenced to fiftyone months in prison. Second, in this case, the Probation Office 

notified the district court that Lasanta had violated his 

supervised-release conditions. Lasanta admitted the violation. 

During the sentencing hearing, defense counsel stated 

that, "given that it's the same offense conduct, that [i.e., the 

sentence for the violation] certainly cannot be concurrent" with 

the sentence imposed in Case No. 14-063. Lasanta instead requested 
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a sentence at the low end of the guidelines range, which was 

fifteen to twenty-one months. 

During defense counsel's sentencing argument, the 

district court inquired, "How far is [Lasanta] from being a career 

offender?" After the prosecutor informed the court that Lasanta's 

possession of a "machine gun is considered a crime of violence," 

the following exchange occurred: 

THE COURT: He's one strike away from being a career 

offender. 

[Prosecutor]: Yeah. 

[Defense counsel]: Or an armed career criminal. 

THE COURT: Or an armed career criminal. 

 

The district court then gave Lasanta this warning: 

I want to look at him and tell him that the next one he 

could be looking at a minimum of 20 years. Your family 

is here. So I'm advising you that the next weapon could 

be fatal. You could be looking at 20 years. So your 

family understands, (speaking Spanish.) The next 

offense could be a potential minimum of 20 years. So 

don't think that you're going 21 to whatever it is here. 

[Defense counsel]: The revocation is 15 to 21, Judge. 

THE COURT: The revocation says 15 to 21. But under the 

guidelines I can go 24. But here's the issue. The issue 

is not this sentence, it's the next one with a weapon. 

Do you understand? (Emphasis added.) 

Once more during defense counsel's argument, the 

district court interjected: "He has the key to open 20 years 

again. He's 20 years." Defense counsel responded, "Yeah, I know," 

and then continued with his argument. 
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After hearing the parties' arguments, the district court 

explained its justifications for the chosen sentence. The court 

stated that it had considered the advisory guidelines, calculated 

the applicable guidelines range, and considered the 18 U.S.C. 

§ 3553(a) factors. The court noted "the fact that [Lasanta] has 

the same proclivity and pattern of criminal behavior," and then 

stated: 

The court is particularly impressed with the same type 

of offense. Barely having . . . terminated his sentence, 

he is again at the incentive and for the reasons that 

the probation officer determined was reasonable to 

search his house, he was again found with weapons and 

extensive ammunition and magazines. 

In the course of explaining its chosen sentence, the 

district court did not reference its earlier warning to Lasanta 

about potential sentencing consequences in the event that he 

continued down his criminal path. Ultimately, it sentenced Lasanta 

to imprisonment for twenty-four months, to be served consecutively 

to the sentence imposed in Case No. 14-063. After imposing 

sentence, the court informed Lasanta of his right to appeal and to 

have a transcript prepared. The court then explained to defense 

counsel that, although he was likely 

disappointed as to the sentence, . . . I think that if 

I provide him less I don't think I'm doing my job 

properly. He, at this time, deserves the sentence that 

the [c]ourt has imposed based on the circumstances of a 

repeated offense barely having left the prison house. 

And it's the same type of offense as before. So we have 

to increase the ante. We cannot go guideline. (Emphasis 

added.) 
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The district court then reminded Lasanta of its earlier 

warning: 

So, I want to remind him again that this sentence is 

relatively short compared to the next potential 

sentence. So watch out. The next potential sentence 

may be up -- may be 240 months. 

[Defense counsel]: Yes, sir. 

THE COURT: So I wish him luck. I really do. I wish 

him luck. I hope that he comes back with a change of 

attitude and the attitude must be an attitude of respect 

for the law. If not, he's going to find another judge 

with his hands tied. 

So, good luck, sir. 

Lasanta timely appealed. 

ANALYSIS 

Lasanta argues that the district court committed 

reversible error in two respects: First, he contends that the 

district court failed to recognize that it retained the discretion 

to order that the sentence imposed in this case run concurrently 

with (instead of consecutively to) the sentence imposed in Case 

No. 14-063. Second, he insists that the district court sentenced 

him "under the mistaken legal impression that his prior conviction 

for mere possession of a machine gun constituted a crime of 

violence." The government counters that Lasanta waived both of 

these claims. So we start there. 
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Waiver 

The manner in which we review a claim of sentencing error 

hinges on whether the defendant preserved the issue below. In 

broad strokes, we review preserved claims under an abuse-ofdiscretion rubric, while forfeited claims must survive plain-error 

review. United States v. Arsenault, 833 F.3d 24, 28 (1st Cir. 

2016).1 Issues can typically be characterized as either preserved 

or forfeited, but that is not always true. 

Unlike a mere failure to object, which results in 

forfeiture of the argument, a litigant waives a claim when he or 

she "'intentionally relinquishes or abandons' a known right." 

United States v. Walker, 538 F.3d 21, 23 (1st Cir. 2008) (quoting 

United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002)); 

see also United States v. Torres-Rosario, 658 F.3d 110, 115-16 

(1st Cir. 2011). The distinction between waiver and forfeiture is 

 1 This generalization is not wrinkle free: "[T]he applicable 

standard of review for an unpreserved, substantive reasonableness 

challenge is 'murky.'" Arsenault, 833 F.3d at 29 (quoting United 

States v. Pérez, 819 F.3d 541, 547 (1st Cir. 2016)); see also 

United States v. Ruiz-Huertas, 792 F.3d 223, 228 (1st Cir. 2015) 

(noting that it is unclear whether an unpreserved substantive 

reasonableness claim should be reviewed for abuse of discretion or 

plain error). We need not dwell on this murkiness, however, 

because Lasanta does not advance a substantive unreasonableness 

challenge to his sentence. Although Lasanta asserts in conclusory 

fashion that the two errors of which he complains render his 

sentence both procedurally and substantively unreasonable, he 

makes no attempt to develop a substantive unreasonableness 

argument. Any such argument, therefore, is not properly before 

us. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). 
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critical: although a forfeited claim will be reviewed for plain 

error, "a waived issue ordinarily cannot be resurrected on appeal." 

Walker, 538 F.3d at 23 (quoting Rodriguez, 311 F.3d at 437). 

In this case, we agree with the government that Lasanta 

has waived his argument that the district court erred in failing 

to recognize its authority to order the sentence in this case to 

run concurrently with the sentence imposed in Case No. 14-063. At 

the sentencing hearing, defense counsel conceded that the sentence 

in this case "certainly cannot be concurrent" with the sentence 

imposed in Case No. 14-063. This "explicit and specific 

concession" constitutes waiver, Torres-Rosario, 658 F.3d at 116, 

and "a party cannot concede an issue in the district court and 

later, on appeal, attempt to repudiate that concession and 

resurrect the issue," United States v. Gates, 709 F.3d 58, 63 (1st 

Cir. 2013). See also, e.g., United States v. Ocasio-Cancel, 727 

F.3d 85, 90 (1st Cir. 2013) (concluding that defendant waived 

argument that district court should have imposed concurrent rather 

than consecutive sentence where, "in response to the court's 

statement at the disposition hearing that it did not intend to 

impose a concurrent sentence, defense counsel repeatedly declared, 

'I'm not asking for that'").2 Thus, we say no more about Lasanta's 

first claim of sentencing error. 

 2 We recognize that we can, "as a matter solely of [our] 

discretion," forgive waiver in "the rare case." United States v. 
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With respect to Lasanta's other appellate contention, 

the government claims that, because "defense [counsel] acquiesced 

in the district court's characterization of [Lasanta's] two 

federal convictions as crimes of violence," Lasanta waived that 

argument as well. Unlike the explicit concession on the 

consecutive-sentence issue, defense counsel never conceded that 

machinegun possession constitutes a crime of violence. 

Accordingly, the case for waiver is less clear. Ultimately, we 

need not decide this issue because Lasanta's claim fails under the 

plain error standard of review. See United States v. DelgadoSánchez, No. 15-2262, 2017 WL 655761, at *4 (1st Cir. Feb. 17, 

2017) ("[W]here a defendant's claim would fail even if reviewed 

for plain error, we have often declined to decide whether the 

defendant's failure to raise the issue below constituted waiver or 

mere forfeiture." (quoting United States v. Acevedo–Sueros, 826 

F.3d 21, 24 (1st Cir. 2016))). 

Future Sentencing Consequences 

Lasanta concedes that, because he failed to preserve his 

second sentencing challenge, we must review for plain error. 

"[T]his stiff standard" imposes a burden on Lasanta to "establish 

'(1) that an error occurred (2) which was clear or obvious and 

 

Walker, 665 F.3d 212, 227 (1st Cir. 2011); see also Torres-Rosario, 

658 F.3d at 116 ("[C]ourts may excuse waivers and disregard 

stipulations where justice so requires."). This is not such a 

case. 
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which not only (3) affected [his] substantial rights, but also (4) 

seriously impaired the fairness, integrity, or public reputation 

of judicial proceedings.'" Arsenault, 833 F.3d at 28-29 (quoting 

Ruiz-Huertas, 792 F.3d at 226). Lasanta's contention falls flat 

right out of the gate. 

Lasanta's claim that the district court sentenced him 

based, at least in part, on "the mistaken legal impression that 

his prior conviction for mere possession of a machine gun 

constituted a crime of violence" is belied by the record. It is 

crystal clear from the sentencing transcript that the district 

court's references to the future sentencing consequences that 

Lasanta might face if he didn't break his habit of possessing 

machineguns was nothing more than a warning to Lasanta — in the 

presence of his family — to change his ways. This warning played 

no role whatsoever in the sentence the district court imposed. 

Indeed, the district court clearly identified the reason for 

imposing the twenty-four month sentence: hot on the heels of his 

release from prison following possession of a machinegun, Lasanta 

committed the same offense. In these circumstances, Lasanta's 

reliance on United States v. Rodríguez-Meléndez, 828 F.3d 35 (1st 

Cir. 2016), is misplaced. See id. at 38-39 (finding plain error 

where district court "relied upon a fact that was demonstrably 

false" and that false fact "was a salient one in its [sentencing] 
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analysis"). Therefore, because the complained-of sentencing error 

simply did not occur, we must reject Lasanta's argument. 

THE END 

For these reasons, we affirm the judgment below.