United States Court of Appeals

For the First Circuit

No. 22-1642

UNITED STATES,

Appellee,

v.

JOHN DERICK ROSARIO-MERCED,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

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

Before

Barron, Chief Judge,

Hamilton,* and Thompson, Circuit Judges.

José B. Vélez Goveo, with whom Vélez & Vélez Law Office was 

on brief, for appellant. 

Jeniffer Vélez Pérez, Assistant United States Attorney, with 

whom W. Stephen Muldrow, United States Attorney, and Mariana E. 

Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate 

Division, were on brief, for appellee. 

July 25, 2024

* Of the Seventh Circuit, sitting by designation.
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HAMILTON, Circuit Judge. Defendant-Appellant John 

Derick Rosario-Merced ("Rosario") was convicted of possessing 

crack cocaine with intent to distribute in violation of 21 U.S.C. 

§ 841(a)(1) and possessing a firearm in furtherance of a drug 

trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). The 

Sentencing Guidelines recommended a sentence of 15 to 21 months in 

prison for the drug charge and a consecutive 60 months in prison 

for the firearm count. The district court opted to vary upward 

from the guideline range and sentenced Rosario to 96 months on the 

firearm count and 18 months on the drug count, for a total prison 

sentence of 114 months, which was 33 months above the high end of 

the guideline range. On appeal, Rosario contends that this upward 

variance was procedurally and substantively unreasonable. 

We affirm because the district court gave sufficient 

reasons for the upward variance, including the quantity of 

ammunition and magazines Rosario possessed and the judge's view of 

the need for deterrence. 

I. FACTUAL AND PROCEDURAL BACKGROUND

In July 2021, police were tipped off that Ivan Javier 

Gines-Negron, who had an outstanding arrest warrant, was staying 

in Rosario's apartment. Several officers went to Rosario's 

apartment to arrest Gines-Negron. They saw Gines-Negron standing 

outside the apartment building, but when the officers approached, 
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he ran away. He fled up the building's stairs and disappeared 

into an apartment.

Officers chased him up the stairs and knocked on the 

apartment door to demand entry. Meanwhile, Gines-Negron began 

throwing guns, drugs, and ammunition out a back window. He tossed 

out an FN Herstal pistol, an extra extended magazine, a total of 

35 bullets, and baggies and packets of cocaine and heroin. At the 

front door, the officers ordered everyone out of the apartment. 

Rosario and Gines-Negron walked out and were promptly arrested.

Officers swept the apartment and found a collection of 

contraband. They recovered a second firearm, a Glock semiautomatic 

handgun that had been modified to shoot automatically, making it 

a machinegun. In total, counting contraband found both inside and 

outside the apartment, the officers recovered a total of four 

magazines (three of which were high-capacity), 107 rounds of 

ammunition, 10.1 grams of crack cocaine, and 1.5 grams of 

fentanyl.1

A federal grand jury indicted Rosario on four offenses: 

possessing a machinegun in furtherance of a drug trafficking crime 

in violation of 18 U.S.C. §§ 924(c)(1)(A) and 924(c)(1)(B)(ii); 

1 The Sentencing Guidelines define a "large capacity magazine"

as one with a capacity of fifteen or more rounds. U.S.S.G. 

§ 5K2.17. The PSR here used the phrase "extended," but we have 

used "extended" and "high-capacity" interchangeably. See, e.g., 

United States v. Díaz-Lugo, 963 F.3d 145, 150 (1st Cir. 2020)
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possessing a firearm in furtherance of a drug trafficking crime in 

violation of 18 U.S.C. § 924(c)(1)(A); possessing crack cocaine 

with intent to distribute in violation of 21 U.S.C. § 841(a)(1); 

and possessing heroin with intent to distribute in violation of 21 

U.S.C. § 841(a)(1). Rosario pled guilty to possessing a firearm 

in furtherance of a drug crime and to the crack cocaine charge. 

The machinegun and heroin charges were dismissed by agreement.

For possessing crack cocaine with intent to distribute, 

the Sentencing Guidelines recommended 15 to 21 months in prison

based on Rosario's total offense level of 13 and criminal history 

category of II. For possessing a firearm in furtherance of a drug 

trafficking crime, the Sentencing Guidelines recommended the 

mandatory minimum codified in 18 U.S.C. § 924(c)(1)(A): 60 months 

in prison, consecutive to any other sentence.

Rosario advocated a total sentence of 81 months in 

prison, comprised of 15 months on the drug count and 66 months on

the firearm count, followed by five years of supervised release. 

The government recommended a total of 102 months in prison — 18 

months on the drug count and 84 months on the firearm count — also 

followed by five years of supervised release.

The district court sentenced Rosario to a total of 114 

months in prison (18 months on the drug count and 96 months on the 

firearm count) followed by five years of supervised release. The 

judge explained that he imposed the above-guideline sentence for 
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two reasons. First, the judge noted the circumstances of Rosario's 

offenses — that he "was in constructive possession" of two guns, 

four magazines, 107 rounds of ammunition, and controlled 

substances. Second, the judge found a greater need for deterrence. 

Citing Puerto Rico's high rate of firearm offenses and its high 

rate of murders as compared to other jurisdictions within the First 

Circuit, the judge concluded that a longer sentence would better

serve deterrence goals. These factors were reiterated in the 

district court's written Statement of Reasons.

II. Analysis

On appeal, Rosario argues that his sentence is 

procedurally and substantively unreasonable. Though his brief 

mentions his substantive reasonableness challenge only in passing, 

we assume that he meant to bring both challenges, and we review 

them separately. See United States v. Calderon-Zayas, 102 F.4th 

28, 35–36 & n.6 (1st Cir. 2024) (analyzing an ambiguous challenge 

under both procedural and substantive lenses "out of an abundance 

of caution" (internal quotations omitted)).

Where a defendant challenges his sentence as both 

procedurally and substantively unreasonable, we consider first the 

procedural challenge and then the substantive challenge. United 

States v. Ramirez-Ayala, 101 F.4th 80, 86 (1st Cir. 2024). We 

conclude that the sentence was neither procedurally nor 

substantively unreasonable.
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A. Procedural Reasonableness

Rosario argues that the district court made a procedural 

error by failing to explain adequately the above-guideline 

sentence. In Rosario's view, Puerto Rico's high murder rate does

not justify the upward variance. He argues that the guideline 

range "had already taken into account" the "ordinary"

circumstances of his offenses, so that the judge's references to 

other criminal activity resulted in Rosario being punished for 

crimes he did not commit. Rosario did not raise this argument 

before the district court, so we review this point, at best, for 

plain error. Ramirez-Ayala, 101 F.4th at 86. In addition, because 

Rosario has not addressed the plain-error standard in his brief, 

his claim is waived. See, e.g., United States v. Vázquez-Rosario, 

45 F.4th 565, 571 (1st Cir. 2022) (finding appellant's claim waived 

because brief failed to address applicable standard of review). 

Because Rosario's claim fails on the merits in any event, however, 

we address it accordingly.

Rosario's argument mischaracterizes the district court's 

explanation for the upward variance. The court identified two 

factors supporting it: the additional contraband that Rosario 

possessed in addition to the charged firearm, and the high murder 

rate in Puerto Rico. As we explain below, the district court did 

not commit plain error by considering these factors together, 

though we might be more skeptical if the judge had relied upon 
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Puerto Rico's high murder rate alone. See United States v. 

Rivera-Berríos, 968 F.3d 130, 135–37 (1st Cir. 2020) (vacating 

sentence in part because district court's discussion of Puerto 

Rico's crime trends was not tied to individual characteristics of 

the offender or the offense of conviction).

1. Additional Contraband

Possessing additional contraband can support an upward 

variance because a judge may find that the Sentencing Guidelines 

do not account sufficiently for all the guns and ammunition 

involved in an offense. Cf. United States v. Díaz-Lugo, 963 F.3d 

145, 155 (1st Cir. 2020) (affirming above-guideline sentence where 

applicable guideline, U.S.S.G. § 2K2.1(a)(4)(B), accounted for 

only one of two guns possessed by defendant and none of defendant's 

four high-capacity magazines). For example, the 60-month 

mandatory minimum in this case would have applied even if the 

charged firearm had not been loaded and Rosario had not possessed 

any ammunition or magazines. The simple fact that he possessed a 

firearm "during and in relation to any . . . drug trafficking 

crime" sufficed to require a 60-month consecutive prison term for 

the firearm charge. 18 U.S.C. § 924(c)(1)(A); U.S.S.G.

§ 2K2.4(b). In this case, the district court explained that the 

applicable guideline provisions did not account adequately for the 

additional firearm, the substantial quantity of ammunition, and 

the extra magazines.
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In similar cases, we have explained that additional 

contraband can justify an above-guideline sentence if the 

defendant possessed more ammunition or magazines than would be 

expected in a typical unlawful possession case. See, e.g., United 

States v. Morales-Vélez, 100 F.4th 334, 344–45 (1st Cir. 2024). 

Possessing a gun, even illegally, generally entails possessing 

bullets and magazines too, so in a run-of-the-mill case for 

unlawful gun possession, a defendant could reasonably be expected 

to have at least some ammunition and magazines in his possession 

as well. But the facts of a case may be deemed atypical, and 

therefore support an above-guideline sentence, when a defendant 

possesses significantly more ammunition or magazines than in a 

typical case. Id. at 344. These are not bright lines, of course, 

but the Sentencing Guidelines are "effectively advisory," not 

binding. Beckles v. United States, 580 U.S 256, 265 (2017) 

(Sentencing Guidelines not subject to void-for-vagueness 

challenge). Accordingly, when a drug dealer possesses a 

substantial cache of illegal ammunition and high-capacity 

magazines alongside his illegal firearm, a sentencing judge could 

reasonably conclude that the underlying offense was more serious 

than the mine-run of such cases.2

2 A sentencing judge also would not be obliged to vary upward 

based on a large quantity of ammunition and/or high-capacity

magazines. As we have emphasized, sentencing usually involves 
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We caution that sentences should not be determined just 

by counting bullets. In cases like this one, quantity is one 

factor to consider along with many others. See United States v. 

Greig, 717 F.3d 212, 223 (1st Cir. 2013) (recognizing range of 

information sentencing judges may consider). That being said, our 

case law has identified some guideposts for determining when 

additional ammunition may support an upward variance, and on which 

charges. Marking the lower end of the spectrum is Rivera-Berríos, 

where we vacated an above-guideline sentence for possession of a 

machinegun, concluding that possessing 36 rounds of ammunition and 

two high-capacity magazines "was entirely consistent with simple 

possession of a machine gun." 968 F.3d at 133, 135.

Several cases are closer to the other end of the 

spectrum. See United States v. Aponte-Colón, 104 F.4th 402, 418 

(1st Cir. 2024) (no abuse of discretion where upward variance for 

possessing firearm in furtherance of drug-trafficking crime was 

based in part on possession of 123 rounds of ammunition and 

multiple high-capacity magazines); Morales-Vélez, 100 F.4th at 

considerable discretion and judgment, and a judge might reasonably 

conclude that excessive ammunition is outweighed by mitigating

factors. See generally United States v. Carrasquillo-Vilches, 33 

F.4th 36, 44–45 (1st Cir. 2022) (affirming sentence at high end of 

guideline range where judge exercised discretion in weighing 

aggravating and mitigating factors); United States v. Greig, 717 

F.3d 212, 223 (1st Cir. 2013) (explaining that "sentencing judges 

have discretion to consider a variety of information in fashioning 

a sentence").
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340, 344–45 (no abuse of discretion where upward variance for 

possessing firearm in furtherance of drug-trafficking crime was 

based in part on possession of 125 rounds of ammunition and four 

magazines, two of which were high-capacity); United States v. 

Bruno-Campos, 978 F.3d 801, 804, 806 (1st Cir. 2020) (no plain 

error where upward variance for possessing a machinegun was based 

in part on possession of 89 rounds of ammunition and four 

magazines, two of which were high-capacity); United States v. 

Rivera-Santiago, 919 F.3d 82, 83, 85–86 (1st Cir. 2019) (no abuse 

of discretion where upward variance for unlawfully possessing 

firearm was based in part on possession of 127 rounds of ammunition 

and five magazines, two of which were high-capacity).

Rosario's case falls on the higher end of this spectrum, 

given both the quantity of the contraband and the offense of 

conviction, possessing a firearm in furtherance of a drugtrafficking crime. He constructively possessed 107 rounds of 

ammunition, four magazines (three of which were high-capacity), 

and another firearm for which he was not convicted. The district 

court did not err, plainly or otherwise, by finding these items 

differentiated Rosario's case from the garden-variety case of 

possessing a firearm in furtherance of a drug-trafficking crime.

2. Community Characteristics

A district court may consider community characteristics 

in imposing a sentence. "Community-based considerations are 
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inextricably intertwined with deterrence," and "the incidence of 

particular crimes in the relevant community appropriately informs 

and contextualizes the relevant need for deterrence." United 

States v. Flores-Machicote, 706 F.3d 16, 23 (1st Cir. 2013). 

Rosario contends, however, that justifying the upward variance by 

comparing Puerto Rico's murder rate to murder rates in other 

jurisdictions in the First Circuit improperly led the district 

court to impute other crimes to Rosario. 

The judge's comparison of murder rates was not a 

reversible error. We have cautioned that sentencing judges should

not "focus too much on the community and too little on the 

individual." United States v. Polaco-Hance, 103 F.4th 95, 102 

(1st Cir. 2024) (quoting Flores-Machicote, 706 F.3d at 24). The 

hallmark of sentencing is an individualized assessment of the 

considerations listed in 18 U.S.C. § 3553(a). See Gall v. United 

States, 552 U.S. 38, 49–50 (2007). While the need for deterrence 

is one factor listed in § 3553(a), it would be an error to justify 

an individual defendant's sentence based only on the need for 

general deterrence to the exclusion of other factors.

Here, though, the district court did not decide 

Rosario's sentence by evaluating only community characteristics. 

He considered them alongside other individualized 

factors — namely, the additional contraband that Rosario 

possessed. The district court discussed Puerto Rico's high murder 
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rate with an eye toward general deterrence, a permissible factor 

to weigh during sentencing. See 18 U.S.C. § 3553(a)(2)(B); United 

States v. Rivera-Gonzalez, 776 F.3d 45, 50–51 (1st Cir. 2015) 

(explaining that district court's consideration of community 

characteristics was not improper where it focused on deterrence 

and was considered alongside other individual factors). We find no 

error, let alone a plain error, in the district court's 

consideration of all these relevant factors.3

3. Constructive Possession

For the first time during oral argument on appeal, 

Rosario asserted that the district court erred in finding that he 

had constructive possession of the gun, drugs, and ammunition that 

Gines-Negron had thrown out the window. Rosario waived this 

argument by failing to include it in his opening brief. See United 

States v. Leoner-Aguirre, 939 F.3d 310, 319 (1st Cir. 2019)

(challenge to jury instruction was waived where it was raised for 

first time during oral argument on appeal). We have excused such 

failures on occasion where it was necessary to avoid a miscarriage 

of justice. See United States v. Flores-González, 86 F.4th 399, 

3 Comparing Puerto Rico community characteristics against only 

other jurisdictions in the First Circuit may not offer the most 

insightful analysis in determining whether to impose an upward 

variance. The Sentencing Guidelines are based on nationwide 

statistics (which include Puerto Rico), so intra-circuit 

comparisons may not explain why a particular defendant should be 

punished more or less severely than suggested by the nationwide 

data factored into the Guidelines.
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442 (1st Cir. 2023) (en banc) (opinion of Thompson, J.) (citing

Sindi v. El-Moslimany, 896 F.3d 1, 30 (1st Cir. 2018) (excusing 

waiver where appellants challenged permanent injunction barring 

certain speech)). This is not such a case. Rosario's argument 

depends on factual findings that are unlikely to present themselves 

again in the same fact pattern. Rosario's argument also was not 

"highly convincing" when he offered it for the first time at oral 

argument. El-Moslimany, 896 F.3d at 28 (appellant's "highly 

convincing" argument was factor in excusing waiver). Though 

Rosario argued that the district court erred in finding that he

had constructive possession of the contraband thrown out the 

window, his argument did not cite cases or otherwise explain why 

a miscarriage of justice would occur if we did not excuse his 

waiver. We decline to address the argument.

B. Substantive Reasonableness

Rosario argues that the district court's total sentence

33 months above the guideline range was substantively 

unreasonable. In the district court, he argued for a shorter 

sentence than the one ultimately imposed. His argument adequately 

preserved his substantive reasonableness challenge for appeal, so 

we review for abuse of discretion. Holguin-Hernandez v. United 

States, 589 U.S. 169, 173–74 (2020).

When sentencing a convicted defendant, a court must 

weigh competing factors and impose a sentence that is "sufficient, 
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but not greater than necessary," to serve multiple, 

often-conflicting goals of sentencing. 18 U.S.C. § 3553(a). The 

mixture of goals and case-specific factors gives the process an 

unavoidable element of discretionary judgment. Reasonable judges 

can weigh the same goals and factors and reach a range of 

reasonable results. For this reason, we must keep in mind on 

appellate review that there is not just one reasonable sentence in 

a case but "a universe of reasonable sentencing outcomes."

Ramirez-Ayala, 101 F.4th at 89 (quoting United States v. Colón-De 

Jesús, 85 F.4th 15, 26 (1st Cir. 2023)). We review a sentence to 

ensure it "falls within this broad universe." Id. (quoting United 

States v. Ortiz-Pérez, 30 F.4th 107, 113 (1st Cir. 2022)). If the 

sentence "rests on a 'plausible sentencing rationale' and embodies 

a 'defensible result,'" it will be found substantively reasonable. 

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

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

The sentence in this case is substantively reasonable because it 

fulfills both requirements.

The district court gave sound and legally permissible 

reasons for imposing the above-guideline sentence here. The 

additional firearm, ammunition, and magazines that Rosario 

possessed distinguished his offense from the run-of-the-mill 

offense under 18 U.S.C. § 924(c) and the applicable guideline 

provisions and supported the upward variance. And the community 
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characteristics mentioned by the district court bolstered the 

reasoning behind the sentence.

We have upheld above-guideline sentences in similar 

cases where defendants possessed ammunition and magazines in 

addition to those for which they were convicted. Polaco-Hance, 

103 F.4th at 104–06 (affirming 21-month upward variance for 

unlawful possession of machinegun where defendant possessed 111 

rounds of ammunition and four extended magazines); United States

v. Morales-Negrón, 974 F.3d 63, 65, 66–67 (1st Cir. 2020) 

(affirming 24-month upward variance for unlawful possession of 

machinegun where defendant possessed 57 rounds of ammunition and 

four magazines, including one high-capacity magazine); Díaz-Lugo, 

963 F.3d at 157–58 (affirming 23-month upward variance for unlawful 

possession of machinegun where defendant possessed two machine 

guns and four extended magazines following previous 

felon-in-possession conviction). We do so for the same reasons 

here.

III. CONCLUSION

The judgment of the district court is AFFIRMED.