United States Court of Appeals 

For the First Circuit 

Nos. 18-2029 

 18-2030 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

RAFAEL J. FLORES-QUIÑONES, 

a/k/a Popeye, 

Defendant, Appellant. 

APPEALS FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

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

Before 

Howard, Chief Judge, 

Lynch and Barron, Circuit Judges. 

Tanaira Padilla-Rodríguez on brief for appellant. 

Gregory B. Conner, Assistant United States Attorney, Mariana 

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

Appellate Division, and W. Stephen Muldrow, United States 

Attorney, on brief for appellee. 

January 15, 2021 
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LYNCH, Circuit Judge. In 2018, police saw Rafael J. 

Flores-Quiñones ("Flores"), who was on supervised release for a 

drug-trafficking conviction, shooting an assault rifle from his 

car window outside a restaurant/pub ("pub") in Canóvanas, Puerto 

Rico. After Flores fled from the police, the officers found a 

loaded assault rifle on the seat of his car which was a basis for 

charges of both a revocation of his supervised release and a new 

crime. He pleaded guilty to being a felon in possession of a 

firearm and was sentenced to sixty months' imprisonment for that 

new offense and to eighteen months' imprisonment for the revocation 

of supervised release. He now argues that those sentences were 

procedurally and substantively unreasonable. Finding no error, 

we affirm. 

I. 

In 2010, Flores was convicted of conspiracy to possess 

with intent to distribute at least 500 grams, but less than two 

kilograms, of cocaine within 1,000 feet of a protected location. 

He sold drugs and acted as a lookout for a drug-trafficking 

organization at a public housing project in Carolina, Puerto Rico. 

He was sentenced to sixty months' imprisonment and eight years of 

supervised release.

After Flores was released from incarceration in January 

2016, he began serving his supervised release in Pennsylvania, 

where his daughters and their mother lived. While there, he failed 
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to appear for urine tests on several occasions and admitted to 

marijuana use. After returning to Puerto Rico, he tested positive 

for benzodiazepines and admitted to synthetic marijuana use. He 

was caught with synthetic marijuana at an in-patient substance 

abuse program, causing his expulsion from that program. The 

district court revoked Flores's supervised release and sentenced 

him in June 2017 to nine months' imprisonment.

Flores was released in January 2018. On March 29, 2018, 

the Puerto Rico Police Department received a tip from a 

confidential source that Flores had been seen firing a rifle 

outside a pub located on a highway in Canóvanas, Puerto Rico, which 

is about a thirty-minute drive from San Juan. In the early morning 

of April 1, 2018, officers saw Flores leave the pub, get in a car, 

take out a rifle, and fire it out of the window into the air. 

After following Flores to a local market in nearby Río Grande, the 

officers confronted Flores and he fled on foot. The officers 

observed an AR-15 rifle, which was loaded with twenty-five rounds 

of .223-caliber ammunition, in plain view on the front passenger 

seat of Flores's car. The officers arrested Flores at his home 

later that day. He admitted that the assault rifle was his and 

that he had fired it that morning outside the pub.

A federal grand jury indicted Flores on one count of 

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

§ 922(g)(1). The government also commenced revocation proceedings 
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against him. Flores pleaded guilty to the felon-in-possession 

charge pursuant to a plea agreement. He agreed to a total offense 

level of nineteen as to that offense. The plea agreement did not 

include a stipulated criminal history category. It provided that 

the government would seek a sentence at the higher end of the 

United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") 

range for the felon-in-possession offense, while Flores could seek 

a sentence at the lower end for that offense.

The presentence report ("PSR") calculated a Guidelines 

sentencing range of thirty-seven to forty-six months for the felonin-possession offense based on a total offense level of nineteen 

and a criminal history category of III. The PSR identified no 

factors warranting a departure for that offense. The U.S. 

Probation Office separately calculated a Guidelines sentencing 

range of four to ten months for the revocation of supervised 

release based on the felon-in-possession offense.

On September 25, 2018, the district court held a hearing 

to sentence Flores on the felon-in-possession offense and to 

address the revocation of his supervised release. 

As to the felon-in-possession offense, Flores requested 

a sentence at the low end of the calculated Guidelines sentencing 

range, arguing that his difficult family history led to his 

criminal behavior and that he was still young and had a GED and 

work experience as a cook. He requested a sentence at the high 
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end for the revocation of supervised release and a total sentence 

for both of forty-seven months. The government requested fortysix months for the felon-in-possession offense, the high end of 

the Guidelines range. It argued that the offense was particularly 

serious because Flores committed it within a few months of his 

release from prison and while on supervised release, he fired an 

assault rifle which is particularly dangerous, and his most recent 

prison term was already for revocation of supervised release. The 

government also requested a higher-end sentence for the 

revocation, arguing that Flores's crimes had escalated from drugs 

to firearm possession. The government sought a total sentence of 

fifty-six months between the felon-in-possession offense and the 

revocation of supervised release.

Addressing first the felon-in-possession offense, the 

district court agreed with the Guidelines calculation set forth in 

the PSR, finding a Guidelines range of thirty-seven to forty-six 

months for that offense. It then considered the sentencing 

factors set forth in 18 U.S.C. § 3553(a). It noted that Flores 

was twenty-eight years old and had a GED and a history of 

employment before his arrest. It also noted his history of using 

marijuana and Percocet.

The district court recounted that Flores had "fired out 

of his car window outside a restaurant only three months after his 

supervised release term had commenced, which put the lives of other 
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persons in danger." It noted that "Flores possessed a semiautomatic firearm capable of accepting a large capacity magazine," 

namely "an AR-15 type assault rifle . . . loaded [with] a high 

capacity magazine with 25 rounds of .223 ammunition." 

Citing the sentencing factors under 18 U.S.C. § 3553(a), 

the district court found that "[b]ecause the weapon Mr. Flores 

possessed was an assault rifle, and because he fired it outside 

his car window putting the lives of other persons in danger," 

neither the sentence Flores sought nor the sentence the government 

sought for the felon-in-possession offense "reflect[ed] the 

seriousness of the offense, promote[d] respect for the law, 

protect[ed] the public from further crimes by Mr. Flores, or 

addresse[d] the issues of deterrence and punishment." The court 

imposed a sentence of sixty months' imprisonment on the felon-inpossession offense to be served consecutively to the sentence to 

be imposed for the revocation. Flores objected to the felon-inpossession sentence as procedurally and substantively unreasonable 

but did not specify the grounds for objection.

Turning to the revocation, the district court found that 

Flores had violated the conditions of his supervised release by 

committing a new crime and revoked his supervised release. It 

agreed with the Probation Office's calculated Guidelines range of 

four to ten months' imprisonment for the supervised release 

violation. 
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The district court considered the sentencing factors for 

Flores's revocation sentence. The court explained that Flores had 

previously violated the terms of his supervised release by 

possessing and abusing drugs and by failing to participate in drug 

treatment programs, and it concluded that his history of violations 

demonstrated his inability to comply with the law and the 

conditions of his release. It also reiterated that Flores fired 

an assault rifle out of his car "in complete disregard to the 

safety of innocent bystanders and residents of the area." Again 

citing the § 3553(a) sentencing factors, the court concluded that 

a sentence above the Guidelines range for the revocation was 

warranted "[t]o reflect the seriousness of the offense, [to] 

promote respect for the law, [to] provide just punishment for the 

offense, [to] afford adequate deterrence, and to protect the public 

from further crimes by" Flores. The district court imposed a 

sentence of eighteen months for Flores's revocation to be served 

consecutively to the sentence for the felon-in-possession offense. 

Flores again objected to the sentence as procedurally and 

substantively unreasonable but again did not specify the grounds 

for objection.

Flores timely appealed.

II. 

Flores challenges both the procedural and substantive 

reasonableness of his above-Guidelines-range sentences. Although 
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the appeal is from two different sentences, the felon-inpossession sentence and the revocation sentence, Flores does not 

distinguish between the two but rather presents one set of 

arguments as to both. We thus treat the arguments as to those 

sentences together. "Where challenges are to the procedural and 

substantive reasonableness of a sentence, '[o]ur review process is 

bifurcated: we first determine whether the sentence imposed is 

procedurally reasonable and then determine whether it is 

substantively reasonable.'" United States v. Reyes-Torres, 979 

F.3d 1, 6-7 (1st Cir. 2020) (alteration in original) (internal 

quotation marks omitted) (quoting United States v. Sayer, 916 F.3d 

32, 37 (1st Cir. 2019)). "In the sentencing context, we evaluate 

claims of unreasonableness in light of the totality of the 

circumstances." United States v. Flores-Machicote, 706 F.3d 16, 

20 (1st Cir. 2013) (citing Gall v. United States, 552 U.S. 38, 51 

(2007)). 

"In assessing the procedural reasonableness of a 

sentence, we apply a 'multifaceted' abuse of discretion standard 

in which 'we apply clear error review to factual findings, de novo 

review to interpretations and applications of the guidelines, and 

abuse of discretion review to judgment calls.'" Reyes-Torres, 979 

F.3d at 7 (quoting United States v. Nieves-Mercado, 847 F.3d 37, 

42 (1st Cir. 2017)). "We review a preserved challenge to the 

substantive reasonableness of a sentence under an abuse of 
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discretion standard." Id. at 9. "A sentence is substantively 

reasonable so long as the sentencing court has provided a 

'plausible sentencing rationale' and reached a 'defensible 

result.'" Sayer, 916 F.3d at 39 (quoting United States v. Martin, 

520 F.3d 87, 96 (1st Cir. 2008)). 

Flores first argues that the district court 

impermissibly departed upwardly from the Guidelines sentencing 

ranges without complying with the notice requirements of Fed. R. 

Crim. P. 32(h),1 which purportedly rendered the resulting sentences 

procedurally infirm. He argues that U.S.S.G. § 5K2.6 explicitly 

provides for a substantial departure from the Guidelines 

sentencing range where a dangerous weapon is possessed and fired 

in the commission of an offense that endangers others, and so the 

departure Guidelines expressly cover what the district court did 

here.2 U.S. Sent'g Guidelines Manual § 5K2.6 (U.S. Sent'g Comm'n 

1 Rule 32(h) provides that "[b]efore the court may depart 

from the applicable sentencing range on a ground not identified 

for departure either in the presentence report or in a party's 

prehearing submission, the court must give the parties reasonable 

notice that it is contemplating such a departure[ and t]he notice 

must specify any ground on which the court is contemplating a 

departure." Fed. R. Crim. P. 32(h) (emphases added). 

2 The full text of U.S.S.G. § 5K2.6 provides: "If a weapon 

or dangerous instrumentality was used or possessed in the 

commission of the offense the court may increase the sentence above 

the authorized guideline range. The extent of the increase 

ordinarily should depend on the dangerousness of the weapon, the 

manner in which it was used, and the extent to which its use 

endangered others. The discharge of a firearm might warrant a 
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2018). Those arguments lack merit for the simple reason that the 

district court did not depart from the applicable Guidelines 

ranges, but rather imposed variant sentences.3 

The district court specifically discussed the particular 

dangerousness of the offense conduct, which involved Flores 

shooting a semi-automatic rifle in a public area outside a pub, 

and Flores's repeated disregard for the terms of his supervised 

release. Those circumstances led the district court to conclude 

that above-Guidelines-range sentences were necessary to afford 

adequate deterrence, to reflect the seriousness of the offense, to 

protect the public, and to promote respect for the law, all of 

which are factors under 18 U.S.C. § 3553(a)(2). The district 

court also expressly cited § 3553(a) in sentencing Flores. 

Setting a sentence after referencing and analyzing the sentencing 

factors under § 3553(a) shows that the court was imposing a 

variance, even when it referenced grounds which would be relevant 

to a departure under the Guidelines. See United States v. SantiniSantiago, 846 F.3d 487, 491 (1st Cir. 2017); United States v. 

Aponte-Vellón, 754 F.3d 89, 93 (1st Cir. 2014) (concluding that 

substantial sentence increase." U.S. Sent'g Guidelines Manual 

§ 5K2.6 (U.S. Sent'g Comm'n 2018). 

3 Because we reject Flores's claims of procedural and 

substantive unreasonableness on the merits and find that the 

district court committed no error, we need not reach the 

government's arguments as to plain error review and waiver.
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the sentencing court engaged in a variance, even though it 

"echo[ed]" grounds for a departure under the Guidelines). Because 

the district court imposed variant sentences, and not departures, 

the notice requirements of Rule 32(h) did not apply. Irizarry v. 

United States, 553 U.S. 708, 714-16 (2008); Santini-Santiago, 846 

F.3d at 490; see also United States v. Daoust, 888 F.3d 571, 575 

(1st Cir. 2018) (holding that the advance notice requirements of 

Rule 32(h) do not apply to sentences imposed for supervised release 

violations, which are governed by a different rule). 

Nor were the sentences imposed otherwise procedurally 

unreasonable. In assessing procedural reasonableness, "[w]e must 

ensure that the district court did not commit any 'significant 

procedural error' to arrive at a sentence." Sayer, 916 F.3d at 

37 (quoting Gall, 552 U.S. at 51). Significant procedural errors 

include 

failing to calculate (or improperly 

calculating) the [Guidelines sentencing 

range], treating the Guidelines as mandatory, 

failing to consider the [18 U.S.C.] § 3553(a) 

factors, selecting a sentence based on clearly 

erroneous facts, or failing to adequately 

explain the chosen sentence -- including an 

explanation for any deviation from the 

Guidelines range. 

Flores-Machicote, 706 F.3d at 20 (second alteration in original) 

(quoting Gall, 552 U.S. at 51). 

 Flores does not argue that the district court failed to 

calculate or miscalculated the Guidelines sentencing range, 
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treated the Guidelines as mandatory, or selected a sentence based 

on clearly erroneous facts. And the district court expressly 

referenced and analyzed the § 3553(a) factors and explained why, 

based on those factors, it was imposing sentences which exceeded 

the Guidelines ranges. There was no significant procedural error.4

 For the same reasons, Flores's argument that the variant 

sentences were substantively unreasonable lacks merit. The 

district court provided plausible sentencing rationales for both 

sentences based on the dangerousness of the assault rifle fired in 

public and Flores's repeated and flagrant disrespect for the terms 

of his supervised release, which included committing a serious 

offense within only a few months of his latest release from prison. 

See, e.g., United States v. Méndez-Báez, 927 F.3d 39, 42-43 (1st 

Cir. 2019); Daoust, 888 F.3d at 577-78. The upwardly variant 

sentences were a defensible result based on those circumstances 

4 The district court cited the sentencing factors under 18 

U.S.C. § 3553(a) in varying upwardly on the revocation sentence, 

even though the relevant factors are found in a separate section, 

18 U.S.C. § 3583(e). See Daoust, 888 F.3d at 576. However, 

§ 3583(e) does not enumerate any independent considerations but 

rather explicitly incorporates a number of the § 3553(a) factors, 

including the nature and circumstances of the offense, the need 

for adequate deterrence, and the need to protect the community 

from further crimes of the defendant. Id.; see also 18 U.S.C. 

§ 3583(e). And in any event, the defendant waived any argument 

that the failure to cite specifically to § 3583(e) with respect to 

the revocation sentence was procedural error by not raising it in 

his brief. See Vázquez-Rivera v. Figueroa, 759 F.3d 44, 46-47, 

47 n.1 (1st Cir. 2014); United States v. Dávila-Félix, 667 F.3d 

47, 51 n.5 (1st Cir. 2011). 
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and the need to achieve adequate deterrence, to protect the 

community, and to promote respect for the law. See, e.g., MéndezBáez, 927 F.3d at 42-43; Daoust, 888 F.3d at 575-78 (affirming 

both the procedural and substantive reasonableness of an upwardly 

variant sentence for a revocation of supervised release). 

 Flores's variant sentences are both procedurally and 

substantively reasonable. 

Affirmed.