United States Court of Appeals 

For the First Circuit 

No. 15-1247 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

LUIS E. PEDROZA-ORENGO, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

[Hon. José Antonio Fusté, U.S. District Judge] 

Before 

Lynch, Kayatta, and Barron, 

Circuit Judges. 

Eleonora C. Marranzini, Research and Writing Specialist, Eric 

Alexander Vos, Federal Public Defender, and Vivianne M. Marrero, 

Assistant Federal Public Defender, Supervisor, Appeals Section, on 

brief for appellant. 

Nelson Pérez-Sosa, Assistant United States Attorney, Chief, 

Appellate Division, and Rosa Emilia Rodríguez-Vélez, United States 

Attorney, on brief for appellee. 

April 1, 2016 
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KAYATTA, Circuit Judge. After pleading guilty to 

unlawful firearm possession, Luis Pedroza-Orengo ("Pedroza") was 

sentenced to a 60-month term of imprisonment. Pedroza 

unsuccessfully urged the district court to reconsider, and he now 

appeals his sentence as procedurally and substantively 

unreasonable. Finding that the district court did not abuse its 

broad sentencing discretion, we affirm. 

I. Background1

Around 4:20 AM on April 20, 2014, Puerto Rico Police 

Department agents conducting surveillance in an area of San Juan 

saw a group of people, including Pedroza, exiting a bar in the 

midst of an argument. Pedroza was carrying a firearm, which he 

pointed in the direction of bystanders. The agents called for 

backup and, while they waited, they observed Pedroza slam his 

firearm on the roof of a car, get inside the car, and prepare to 

leave the scene. Before Pedroza could depart, backup arrived and 

the agents stopped and searched the car. The search turned up a 

Glock pistol loaded with fifteen rounds of ammunition, as well as 

an additional high-capacity magazine loaded with twenty-one rounds 

of ammunition. 

 1 Because Pedroza pled guilty, we draw our recitation of the 

facts from the change of plea colloquy and the unchallenged 

portions of the Presentence Investigation Report. See United 

States v. Maguire, 752 F.3d 1, 3 (1st Cir. 2014). 
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A grand jury charged Pedroza with one count of being a 

felon in possession of a firearm in violation of 18 U.S.C. 

§ 922(g)(1).2 Pedroza pled guilty pursuant to a plea agreement. 

Under the agreement, the parties agreed to recommend that the 

district court sentence Pedroza to the low end of the applicable 

United States Sentencing Guidelines ("Guidelines") range. At the 

same time, the agreement made clear that ultimately "the sentence 

[would] be left entirely to the sound discretion of the Court." 

The district court accepted Pedroza's guilty plea and 

ordered the preparation of a Presentence Investigation Report 

("PSR"). The PSR determined that Pedroza fell into Criminal 

History Category III, which, taken with Pedroza's total adjusted 

offense level of 17,3 corresponded to a Guidelines sentencing range 

of 30–37 months' imprisonment. The PSR also noted that a 

psychological evaluation conducted when Pedroza was eight years 

old revealed a verbal IQ of 83 and a performance IQ of 67 and 

indicated "borderline intellectual functioning" accompanied by 

"specific learning difficulties." 

 2 Pedroza had previously been convicted for illegal possession 

of a machine gun under 18 U.S.C. § 922(o). At the time of the 

instant offense, Pedroza was on supervised release for this prior 

conviction.

3 Pedroza's base offense level was 20, see USSG 

§ 2K2.1(a)(4)(B), but this figure was reduced by three levels to 

account for Pedroza's acceptance of responsibility, see id. 

§ 3E1.1. 
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In preparation for sentencing, the district court also 

received a 15-page neuropsychological evaluation prepared by a 

licensed clinical neuropsychologist. The evaluation placed 

Pedroza's total IQ at 60, and it placed Pedroza's global 

intellectual functioning in the "[m]ild intellectually disabled 

range." The report further noted Pedroza's "chronic" difficulties 

with "[i]mpulsive behavior," as well as his impaired "ability to 

self-reflect, learn from mistakes, develop appropriate goals, and 

adapt to the demands of his environment." The report concluded 

that these characteristics contributed to Pedroza's "poor 

judgment" and inadequate "behavioral control" and to the 

commission of the instant offense. The report did not state that 

Pedroza failed to comprehend that his offense conduct was wrong, 

or that Pedroza was compelled in any way to engage in such conduct. 

In keeping with the plea agreement, both parties 

recommended that the district court impose a low-end Guidelines 

sentence of 30 months. During a lengthy colloquy at the sentencing 

hearing, Pedroza's counsel emphasized Pedroza's mental condition 

as justification for the recommended sentence. The district court 

agreed "that [Pedroza] has an issue" but found that his mental 

condition "work[ed] in a sense against society" because "[a]n 

individual with that kind of situation has less acumen to make 

decisions, correct decisions regarding firearms and firearms use" 

and so poses "a bigger danger than an individual who has an IQ of 
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125 with an illegal gun in his hand." Thus rejecting Pedroza's 

argument that the evidence of Pedroza's mental condition called 

for a shorter sentence than Pedroza might otherwise receive, the 

district court turned to the factors that it regarded as 

determinative. Citing the light sentence Pedroza received for his 

prior firearms conviction, the dangerousness of Pedroza's offense 

conduct, and the high incidence of gun-related crime in Puerto 

Rico, the district court found "no way [Pedroza was] going to walk 

away . . . with a [G]uideline[s] sentence" and sentenced Pedroza 

to an upwardly variant 60-month term of imprisonment and three 

years of supervised release. 

Pedroza moved for reconsideration, and the district 

court denied his motion. Pedroza now appeals,4 contending that 

the district court abused its discretion in imposing his sentence. 

II. Analysis 

A. Legal Standards

Appellate review of a criminal sentence proceeds in two 

steps. We first "ensure that the district court committed no 

significant procedural error." Gall v. United States, 552 U.S. 

38, 51 (2007). If we find no procedural error, we "then consider 

 4 Both parties agree that because Pedroza was not sentenced 

in accordance with the parties' recommendations, the waiver of 

appeal rights in his plea agreement does not bar this appeal. See 

United States v. Fernández-Cabrera, 625 F.3d 48, 51 (1st Cir. 

2010). 
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the substantive reasonableness of the sentence imposed." Id. Both 

inquiries proceed under the deferential abuse of discretion 

standard.5 Id. 

B. Procedural Reasonableness 

Pedroza makes three claims of procedural error. We 

address each in turn. 

1. Explanation of the Sentence 

Pedroza claims that the district court failed to justify 

its choice to impose an upwardly variant 60-month sentence. 

"[F]ailing to adequately explain the chosen sentence--including an 

explanation for any deviation from the Guidelines range"--is a 

"significant procedural error." Gall, 552 U.S. at 51. Where, as 

here, the court "decides that an outside-Guidelines sentence is 

warranted, [it] must consider the extent of the deviation and 

ensure that the justification is sufficiently compelling to 

support the degree of the variance." Id. at 50. But although 

"the court ordinarily should identify the main factors upon which 

 5 Where a defendant raises no objection below, we typically 

review a sentence for plain error only. United States v. ReyesRivera, 812 F.3d 79, 85 (1st Cir. 2016). Although Pedroza claims 

that he objected to his sentence, the sentencing transcript reveals 

no objection. If Pedroza is referring to his motion for 

reconsideration, such after-the-fact motions are insufficient to 

evade plain-error review. See United States v. Almonte-Reyes, No. 

13-1934, 2016 WL 669381, at *2 n.4 (1st Cir. Feb. 18, 2016). 

Nonetheless, we decline in our discretion to apply a plain-error 

standard here because the government has failed to request it. 

See id. 
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it relies, its statement need not be either lengthy or detailed." 

United States v. Turbides-Leonardo, 468 F.3d 34, 40 (1st Cir. 

2006). 

Here, the district court explained its decision to 

deviate from the Guidelines range of 30–37 months. The district 

court described Pedroza's offense conduct in detail, emphasizing 

the fact that Pedroza had "pointed [his] firearm in the direction 

of bystanders," the fact that Pedroza's Glock pistol was "the most 

easily convertible gun to automatic mode," and the fact that 

Pedroza had acted in "[u]ncontrollable, bold fashion in front of 

police officers." Moreover, the district court highlighted the 

fact that Pedroza had committed the instant offense within a year 

of his release from incarceration for a prior firearms offense--

an offense for which Pedroza had received an unrealized 

"opportunity" for rehabilitation through a "totally lower end 

[G]uideline[s]" sentence. 

The district court also took into account the unique 

proliferation of gun crimes in Puerto Rico. Given that "the 

incidence of particular crimes in the relevant community 

appropriately informs and contextualizes the relevant need for 

deterrence," we have recognized "the incidence and trend lines of 

particular types of crime in the affected community" as relevant 

considerations in sentencing. United States v. Flores-Machicote, 

706 F.3d 16, 23 (1st Cir. 2013). Pedroza points to the district 
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court's statement that Puerto Rico "[doesn't] have the typical 

heartland cases . . . that justify" Guidelines sentences to suggest 

that the district court relied exclusively on community-based 

considerations, rather than "case-specific factors," id. at 24, to 

justify its variant sentence.6 But, as discussed above, the 

sentencing colloquy included extensive discussion of the offense 

conduct and of Pedroza's criminal history. And even when 

discussing community-based considerations, the district court 

linked Puerto Rico's problem with gun violence to "individuals 

like [Pedroza] with guns of this nature." (Emphases supplied.) 

In sum, "the claim that [the district court] did not give 

individualized attention to the sentencing determination is 

unfounded." Id. 

In a slight twist, Pedroza contends that even if the 

district court did rely on individualized considerations in 

sentencing him, it relied on factors that had "already [been] 

included in the calculation of the [G]uidelines sentencing range" 

without "articulat[ing] specifically the reasons that [Pedroza's] 

situation is different from the ordinary situation covered by the 

 6 Pedroza also contends that the district court erred by 

referencing the incidence of gun crime in other countries. Even 

assuming that such references were improper, however, there is no 

indication that they were material to the district court's 

sentencing determination; rather, the record reveals them to have 

been nothing more than "unnecessary rhetorical flourishes." 

Flores-Machicote, 706 F.3d at 22. 
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[G]uidelines calculation." United States v. Zapete-Garcia, 447 

F.3d 57, 60 (1st Cir. 2006). Again, however, the court 

specifically addressed the particular facts of Pedroza's actual 

offense that distinguished it from a generic instance of unlawful 

possession: namely, Pedroza's dangerous brandishing of a firearm 

in a public location, the make of Pedroza's gun, the speed of 

Pedroza's recidivism, the leniency of Pedroza's prior sentence, 

and Puerto Rico's distinct problems with crime of this type. In 

sum, the district court adequately explained the basis for its 

upwardly variant sentence. 

2. Consideration of Mitigating Evidence 

Failure to consider the sentencing factors enumerated in 

18 U.S.C. § 3553(a) is an abuse of discretion. See Gall, 552 U.S. 

at 51. Pedroza contends that the district court failed to take 

into account his "history and characteristics," 18 U.S.C. 

§ 3553(a)(1), because the court "refused to consider evidence of 

[his] mental and cognitive conditions." Pedroza bases this 

contention on two points: that the district court declined defense 

counsel's offer to present live testimony from a 

neuropsychologist, and that the court at one point stated that it 

was "not willing to consider [Pedroza's mental condition] at the 

time of sentencing." Neither point survives our review of the 

sentencing transcript as a whole. 
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First, regarding defense counsel's proffered live expert 

testimony, the proffer did not occur until the day of (indeed, 

after the start of) the sentencing hearing. Of course, had the 

court wished to do so, it could have opted to postpone or 

reschedule sentencing to hear the expert testimony. But it was 

not required to do so. See United States v. Claudio, 44 F.3d 10, 

16 (1st Cir. 1995) ("[T]here is no automatic right to present live 

testimony at sentencing . . . ."). And we cannot say that the 

district court abused its discretion in declining to grant such a 

postponement, especially given the absence of any suggestion that 

the expert's live testimony would contribute anything beyond what 

the expert had already stated in the detailed written report that 

had been provided for the district court. See id. In any event, 

the district court accepted the gist of the expert's conclusion: 

that Pedroza suffered from, in the words of the district court, 

"[m]ild mental retardation." The district court rejected, 

instead, Pedroza's argument that such a diagnosis warranted a lowend sentence.7

 7 Pedroza also argues that the district court relied on new 

information in sentencing without providing him the opportunity to 

challenge it. The only new "information" was the court's 

disclosure that it had heard the defense's expert testify in other 

recent cases and had been unimpressed with her conclusions. The 

court relied on no facts gleaned in any other proceeding, noting 

only its impression of the expert's testimony. The court pointed 

to this impression to explain, in part, why it did not feel a need 

to adjourn sentencing to another day in order to hear the expert 

testify live. We doubt that such impressions constitute the type 
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Second, we reject for similar reasons Pedroza's literal, 

out-of-context reading of the district court's remark that it was 

"not willing to consider [Pedroza's mental condition] at the time 

of sentencing." The transcript of the sentencing colloquy contains 

pages of discussion reflecting the court's explicit consideration 

of Pedroza's mental condition. In context, and in relevant part, 

the district court was simply saying that, after expressly 

considering and discussing the evidence concerning Pedroza's 

mental condition, it found that any mitigating force to that 

evidence was undercut by the implications the evidence held for 

Pedroza's potential for future dangerousness, and it therefore 

declined to rely on the evidence as a reason to issue the low-end 

sentence that Pedroza urged. In short, the court clearly 

considered Pedroza's mental condition as a component of Pedroza's 

"history and characteristics." 18 U.S.C. § 3553(a)(1). And even 

though Pedroza was entitled to the court's consideration of the 

statutory sentencing factors, he was not entitled to any particular 

 

of "factual information on which [a] sentence is based" that must 

be disclosed prior to sentencing. United States v. Zavala-Martí, 

715 F.3d 44, 55 (1st Cir. 2013) (quoting United States v. RiveraRodríguez, 489 F.3d 48, 53–54 (1st Cir. 2007)). In any event, 

given that the district court ultimately voiced no disagreement 

with the expert's report in this case, disagreeing instead only 

with the legal import of her diagnosis, Pedroza can point to no 

way in which he was prejudiced by the lack of opportunity to 

challenge the district court's impressions of the expert's prior 

testimony. See Irizarry v. United States, 553 U.S. 708, 716 

(2008). 
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outcome from that consideration. United States v. Carrasco-deJesús, 589 F.3d 22, 29 (1st Cir. 2009); see also United States v. 

Rivera-González, 776 F.3d 45, 50 (1st Cir. 2015) (district court 

entitled to weigh certain factors "less heavily than [defendant] 

would have liked"); United States v. Prosperi, 686 F.3d 32, 43 

(1st Cir. 2012) ("[A] district court's 'choice of emphasis' when 

considering relevant factors is not a ground for vacating a 

sentence." (quoting United States v. Zapata, 589 F.3d 475, 488 

(1st Cir. 2009))). 

Pedroza responds that even if the district court was not 

required to give his mental condition mitigating force, the court 

was not entitled to give it any aggravating force. Pointing to 

the district court's concern that Pedroza's mental condition left 

him with diminished "acumen to make decisions, correct decisions 

regarding firearms and firearms use" and rendered him "a bigger 

danger than an individual who has an IQ of 125 with an illegal gun 

in his hand," Pedroza contends that the district court imposed a 

longer sentence than it would have selected had Pedroza not 

suffered from any such condition. 

A careful reading of the record, however, belies 

Pedroza's description of the district court's reasoning. We read 

the sentencing transcript as demonstrating that Pedroza received 

the same sentence that he would have received had he not submitted 

the evidence of his mental condition. The pertinent discussion 
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commenced with Pedroza arguing that the evidence was a mitigating 

factor. The court rejected that argument, noting that the 

evidence, when taken together with Pedroza's offense conduct, 

suggested a possibility of future dangerousness that undercut the 

mitigating weight of Pedroza's diminished culpability. This was 

hardly a novel observation. See Penry v. Lynaugh, 492 U.S. 302, 

324 (1989), abrogated on other grounds by Atkins v. Virginia, 536 

U.S. 304, 321 (2002); cf. U.S.S.G. § 5K2.13 (district court may 

not allow downward departure on the basis of diminished capacity 

where certain aspects of the offense or defendant's criminal 

history indicate a threat to public safety). The court then 

explained at length the reasons for its upwardly variant sentence, 

never mentioning Pedroza's mental condition among those reasons 

and relying instead on Pedroza's offense conduct and criminal 

history and the conditions in Puerto Rico. In short, we are 

presented here with a decision not to rely on the evidence of 

Pedroza's mental condition either way, rather than a decision to 

use such evidence to justify a longer sentence than would otherwise 

be imposed. We therefore have no need to express any view on 

whether and how a sentencing court could rely on such evidence to 

the defendant's detriment. 

3. The Statement of Reasons Form 

A court imposing a non-Guidelines sentence must state 

the reasons for the sentence "with specificity in a statement of 
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reasons form." 18 U.S.C. § 3553(c)(2). Pedroza contends that the 

district court committed procedural error here by failing to comply 

with this statutory duty. Although the government submits that 

the district court did issue a statement of reasons form, a 

completed form is not part of the record before us. But it is 

unnecessary for us to resolve this factual dispute because if there 

was indeed error, it was harmless. Even under an abuse of 

discretion standard, a sentencing court's failure to submit a 

statement of reasons form will not cause us to vacate the sentence 

if, "[g]iven our review of the district court's oral explanation, 

we believe that the district court would have imposed the same 

sentence had it filed a written statement of reasons form." United 

States v. Vázquez-Martínez, 812 F.3d 18, 25 (1st Cir. 2016). In 

light of the district court's comprehensive explanation of reasons 

in open court, such is the case here. 

C. Substantive Reasonableness 

Finally, Pedroza argues that his 60-month sentence is 

substantively unreasonable. "[T]he linchpin of a reasonable 

sentence is a plausible sentencing rationale and a defensible 

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

Because we have already found the district court's sentencing 

rationale to rest within the range of acceptable discretion, "we 

limit our review to the question of whether the sentence, in light 

of the totality of the circumstances, resides within the expansive 
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universe of reasonable sentences." United States v. King, 741 

F.3d 305, 308 (1st Cir. 2014). 

While Pedroza's 60-month sentence was twice the length 

of the 30-month sentence recommended by the parties and nearly 

two-thirds longer than a high-end Guidelines sentence of 37 months, 

"no 'extraordinary' circumstances are required to justify a 

sentence outside the Guidelines range." United States v. Nelson, 

793 F.3d 202, 207 (1st Cir. 2015). Recognizing that sentencing 

represents "'a judgment call' involving an intricate array of 

factors," Flores-Machicote, 706 F.3d at 21 (quoting Martin, 520 

F.3d at 92), we cannot say that Pedroza's 60-month sentence for 

unlawful firearm possession--while long--is "outside the universe 

of reasonable sentences for an offense with a statutory maximum of 

120 months," United States v. Paulino-Guzman, 807 F.3d 447, 451 

(1st Cir. 2015) (citing 18 U.S.C. § 924(a)(2)). 

III. Conclusion 

Finding that Pedroza's upwardly variant sentence was 

neither procedurally nor substantively unreasonable, we affirm 

that sentence.