United States Court of Appeals 

For the First Circuit 

No. 15-2154 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

MIGUEL NIEVES-BORRERO, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

[Hon. Aida M. Delgado-Colón, Chief U.S. District Judge] 

Before 

Torruella, Thompson, and Barron, 

Circuit Judges. 

Luz M. Ríos-Rosario for appellant. 

Jonathan L. Gottfried, Assistant United States Attorney, with 

whom Mariana E. Bauzá-Almonte, Assistant United States Attorney, 

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

States Attorney, were on brief, for appellee. 

May 1, 2017 
- 2 - 

BARRON, Circuit Judge. This appeal requires us to review 

Miguel Nieves-Borrero's challenge to the 70-month prison sentence 

that he received after he pled guilty in the United States District 

Court for the District of Puerto Rico, pursuant to a plea 

agreement, to aiding and abetting a convicted felon in the 

possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 

924(a)(2), and 2. We affirm the sentence. 

I. 

In March of 2015, Nieves entered into a plea agreement 

with the government. In that agreement, the parties calculated 

that Nieves' base offense level under the United States Sentencing 

Guidelines was 14, pursuant to U.S.S.G. § 2K2.1(a)(6). The plea 

agreement then calculated that the offense level should be reduced 

by two levels due to Nieves' acceptance of responsibility, in 

accordance with U.S.S.G. § 3E1.1. The plea agreement thus set 

forth a total adjusted offense level of 12. The parties did not 

stipulate to a criminal history category ("CHC") and made no 

reference to any prior convictions of Nieves'. The plea agreement 

noted that the recommended sentencing range under the Guidelines 

for a defendant with an offense level of 12 and a CHC of I is 10 

to 16 months. U.S.S.G. Ch. 5, Part A. The plea agreement 

stipulated that "[t]he parties agree to recommend a term of 

imprisonment at the lower end of the applicable guideline range." 
- 3 - 

Prior to sentencing, but after the parties entered into 

a plea agreement, the Probation Office issued a pre-sentence report 

("PSR"). The PSR set forth a base offense level of 26 for Nieves, 

which was higher than the base offense level that the plea 

agreement had set forth. The PSR used the higher figure because 

it noted that Nieves had two prior convictions, neither of which 

had been mentioned in the plea agreement. It then relied on these 

two prior convictions in calculating his base offense level 

pursuant to U.S.S.G. § 2K2.1(a)(1)(B), which provides for a base 

offense level of 26 where a defendant has previously "sustain[ed] 

at least two felony convictions of either a crime of violence or 

a controlled substance offense." The terms "crime of violence" 

and "controlled substance offense" are defined in the commentary 

to U.S.S.G. § 4B1.2. 

The first of Nieves' prior felony convictions that the 

PSR identified as qualifying under U.S.S.G. § 2K2.1(a)(1)(B) was 

for fourth-degree aggravated battery under Article 122 of the 

Puerto Rico Penal Code. See P.R. Laws Ann. tit. 33, § 4750. The 

PSR specified that the conviction was "for conduct that qualifies 

as a crime of violence under USSG § 4B1.2." 

The PSR identified the second of Nieves' qualifying 

convictions under U.S.S.G. § 2K2.1(a)(1)(B) as one for attempt to 

possess with intent to distribute controlled substances, in 

violation of Article 406 of the Puerto Rico Controlled Substances 
- 4 - 

Act. See P.R. Laws Ann. tit. 24, § 2406. The PSR specified that 

the conviction was "for conduct that qualifies as [a] controlled 

substances offense[] under USSG § 4B1.2."

The PSR also applied a two-level enhancement to the 

offense level under U.S.S.G. § 2K2.1(b)(1) because Nieves' present 

conviction was for conduct that involved five firearms, and applied 

a three-level reduction for acceptance of responsibility under 

U.S.S.G. § 3E1.1. This resulted in a total adjusted offense level 

of 25 for Nieves. The PSR also specified that Nieves had a CHC of 

III. The PSR calculated that the resulting sentencing guidelines 

range was 70 to 87 months' imprisonment. The PSR did not recommend 

a specific sentence. Nieves did not object to the PSR. 

Following the issuance of the PSR, Nieves pled guilty to 

aiding and abetting a convicted felon in the possession of a 

firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 2. 

At the sentencing hearing, the government recommended a sentence 

of 15 months' imprisonment. 

The District Court noted the discrepancy between the 

Sentencing Guidelines range set forth in the plea agreement and 

the one set forth in the PSR, and specifically referred to Nieves' 

prior convictions specified in the PSR as qualifying offenses under 

U.S.S.G. § 2K2.1(a)(1)(B). Nieves did not object. The District 

Court then sentenced Nieves to 70 months' imprisonment. Nieves 

now challenges his sentence on appeal.
- 5 - 

II. 

Nieves first challenges the classification of his prior 

convictions as ones that suffice to trigger the application of 

U.S.S.G. § 2K2.1(a)(1)(B). However, Nieves failed to raise this 

objection below. The government contends that, in consequence, 

Nieves has waived this challenge. See United States v. TurbidesLeonardo, 468 F.3d 34, 38 (1st Cir. 2006). Nieves responds that 

he merely forfeited it and thus that we must review it for plain 

error. See United States v. Olano, 507 U.S. 725, 732 (1993). We 

need not address whether or not Nieves' failure to object to the 

PSR constitutes a waiver, because Nieves fails to demonstrate that 

plain error occurred.1 See United States v. Delgado-López, 837 

F.3d 131, 135 n.2 (1st Cir. 2016) (declining to decide whether 

defendant waived or forfeited objection to PSR where objection was 

meritless in any case). And so we proceed to our reasons for 

rejecting the substance of his challenge. 

A.

 Nieves first contends that his conviction for fourthdegree aggravated battery under Article 122 of the Puerto Rico 

Penal Code, see P.R. Laws Ann. tit. 33, § 4750, cannot constitute 

 1 On plain error review, Nieves 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. United States v. Serrano-Mercado, 784 

F.3d 838, 845 (1st Cir. 2015). 
- 6 - 

a "crime of violence" under U.S.S.G. § 2K2.1(a)(1)(B), as defined 

in U.S.S.G. § 4B1.2. Under what is known as § 4B1.2's force 

clause, a prior conviction constitutes a "crime of violence" if 

the conviction is "punishable by imprisonment for a term exceeding 

one year" and "has as an element the use, attempted use, or 

threatened use of physical force against the person of another." 

U.S.S.G. § 4B1.2(a)(1) (effective Nov. 1, 2014). In addition, 

under what is known as the guideline's residual clause, a prior 

conviction constitutes a crime of violence if the conviction 

"involves conduct that presents a serious potential risk of 

physical injury to another." Id. § 4B1.2(a)(2). Nieves contends 

that the aggravated battery conviction cannot constitute a "crime 

of violence" under either clause. 

With respect to the residual clause, Nieves contends 

that it is unconstitutionally vague under Johnson v. United States, 

135 S. Ct. 2551 (2015), which held unconstitutional a similarly 

worded clause in the Armed Criminal Career Act, 18 U.S.C. 

§ 924(e)(2)(B)(ii), see id. at 2557. But although the government 

makes no argument to the contrary in its brief, the Supreme Court, 

following the briefing in this case, squarely rejected the 

contention that Johnson invalidates the residual clause in the 

Sentencing Guidelines. See Beckles v. United States, 137 S. Ct. 

886, 890 (2017). Thus, we reject Nieves' argument that, due to 

Johnson, his aggravated battery conviction cannot qualify under 
- 7 - 

the residual clause. Cf. United States v. Thompson, No. 13-1822, 

2017 WL 1076336, at *2 (1st Cir. Mar. 22, 2017) (declining, after 

Beckles, to be bound by the government's pre-Beckles concession 

that Johnson invalided the residual clause in the Sentencing 

Guidelines). 

Moreover, even if we were to set aside the residual 

clause and focus solely on the force clause, as the parties did in 

their briefs to us, Nieves still cannot show plain error. To 

determine whether a prior conviction counts as a crime of violence 

under the force clause, we must apply what is called the 

"categorical approach," under which "[w]e look to the elements of 

the prior convictions as defined by the relevant statute" and 

compare those elements "to the elements of the crimes described in 

the guideline's definition." United States v. Castro-Vazquez, 802 

F.3d 28, 35 (1st Cir. 2015). But, as the government points out, 

on its face, Article 122 does not appear to apply to mere offensive 

touching -- which we have held sweeps too broadly to constitute a 

"crime of violence," see United States v. Fish, 758 F.3d 1, 9 (1st 

Cir. 2014) -- because Article 122 applies only where the defendant 

has injured another in a manner that "requires medical attention 

[or] specialized professional outpatient treatment." P.R. Laws 

Ann. tit. 33, § 4750. And Nieves makes no argument as to how 

Article 122 -- despite applying only where an injury requires 

medical attention or treatment -- sweeps more broadly than the 
- 8 - 

definition provided in the force clause. As Nieves fails to argue 

how the statute applies to conduct beyond that encompassed by the 

force clause -- much less "point to his own case or other cases in 

which the state courts in fact did apply the statute" in such a 

manner, see Gonzalez v. Duenas-Alvarez, 549 U.S. 183, 193 (2007) 

-- Nieves has not shown plain error. 

B. 

Nieves next contends that the District Court erred by 

finding that his other prior felony conviction qualified as a 

predicate offense under § 2K2.1(a)(1)(B). The PSR described that 

conviction as being for "[a]ttempt to possess with intent to 

distribute controlled substances," in violation of Article 406 of 

the Puerto Rico Controlled Substances Act. See P.R. Laws Ann. 

tit. 24, § 2406. Nieves does not contest this characterization of 

his prior conviction. He contends only that the conviction cannot 

constitute a "controlled substance offense" under U.S.S.G. § 4B1.2 

because it was for attempt to possess controlled substances with 

intent to distribute. We do not agree. 

The commentary to U.S.S.G. § 4B1.2 makes clear that a 

"controlled substance offense" "include[s] the offenses of aiding 

and abetting, conspiring, and attempting to commit such offenses." 

U.S.S.G. § 4B1.2 cmt. 1 (emphasis added). And while commentary to 

the Guidelines "must not be confused with gospel," such commentary 

"is generally authoritative" where it is not "arbitrary, 
- 9 - 

unreasonable, inconsistent with the guideline's text, or contrary 

to law." United States v. Duong, 665 F.3d 364, 368 (1st Cir. 2012) 

(citation omitted). We have, moreover, previously treated this 

particular commentary to § 4B1.2 as authoritative. See United 

States v. Piper, 35 F.3d 611, 617 (1st Cir. 1994) (relying on the 

commentary to § 4B1.2 in concluding that an Article 406 conviction 

for conspiracy to possess with intent to distribute over 100 

kilograms of marijuana constitutes a controlled substance 

offense). Thus, Nieves fails to show plain error here as well. 

C. 

Nieves finally argues that the District Court erred in 

classifying the two prior felony convictions as qualifying ones 

under U.S.S.G. § 2K2.1(a)(1)(B) because the District Court merely 

relied on the PSR's classification of those offenses and thus 

failed to fulfill what he contends was the District Court's 

obligation to apply the categorical approach to determine whether 

those offenses were qualifying. But Nieves did not make this 

argument below, and, reviewing for plain error, see United States 

v. Dávila-González, 595 F.3d 42, 47 (1st Cir. 2010), we find none. 

Even if we were to assume that the District Court had such an 

obligation and failed to perform it, we have already explained 

that Nieves provides us with no basis for concluding that his prior 

convictions were not qualifying predicate offenses under the 

categorical approach. He thus cannot show that his substantial 
- 10 - 

rights were affected by any error. See United States v. Davis, 

676 F.3d 3, 9-10 (1st Cir. 2012) (holding that a defendant failed 

to show plain error -- and specifically, that his substantial 

rights had been affected -- because he could not show that any 

error in determining whether his prior conviction qualified as a 

predicate for the career-offender enhancement was prejudicial). 

III. 

 Separately, Nieves contends that the District Court 

erred by failing to give sufficient weight to mitigating factors, 

as required by 18 U.S.C. § 3553(a). Specifically, Nieves argues 

that the District Court failed to consider that Nieves "suffers 

from mild retardation and . . . went to school to a Special 

Education program until the 10th grade," was raised by a single 

mother "in a struggling situation," and has sought guidance and 

religion. But Nieves did not raise this objection below either, 

and so, here, too, our review is only for plain error. See DávilaGonzález, 595 F.3d at 47. We, again, find none. 

 The District Court stated at sentencing that it was 

considering the § 3553(a) factors, and explicitly noted the 

following: 

[T]he defendant is 28 years of age, has one child, has 

a 10th grade education, he abandoned school in the 11th 

grade. He was unemployed at the time of arrest, prior 

to that he was occasional[ly] employed doing odd jobs. 

The defendant is in good physical health. However, he 

submitted to mental health treatment as a child. He had 

learning disabilities and hyperactivity. He also 
- 11 - 

received mental health treatment for anxiety as an adult 

under State custody. 

 

The District Court did not refer individually to every mitigating 

factor Nieves now identifies. But the District Court did take the 

§ 3553(a) factors into consideration. And, "[t]hough we require 

consideration of the § 3553(a) factors, we do not require . . . 

that each factor be individually mentioned." United States v. 

Lozada-Aponte, 689 F.3d 791, 793 (1st Cir. 2012). Accordingly, no 

plain error occurred.

IV. 

 The sentence is affirmed.