United States Court of Appeals

For the First Circuit

No. 14-1368

UNITED STATES OF AMERICA,

Appellee,

v.

JAN CARLO OQUENDO-GARCIA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Howard, Lipez and Thompson,

Circuit Judges.

Raymond Rivera Esteves on brief for appellant.

Rosa Emilia Rodriguez-Velez, United States Attorney, Nelson

Perez-Sosa, Assistant United States Attorney, Chief, Appellate

Division and Carmen M. Marquez-Marín, Assistant United States

Attorney, on brief for appellee.

April 9, 2015
HOWARD, Circuit Judge. Jan Carlo Oquendo-Garcia appeals

his above-guidelines sentence for aiding and abetting the

possession of a rifle in furtherance of a drug-trafficking crime,

18 U.S.C. § 924(c)(1)(A). He argues that the court imposed an 84-

month incarcerative sentence in violation of Fed. R. Crim. P. 32(h)

and that the sentence was substantively unreasonable. Finding no

errors, we affirm. 

Following a routine vehicle stop which escalated into a

police pursuit, law enforcement officers arrested Oquendo-Garcia

and Joshua Molina-Velazquez. Searches of their persons, the

vehicle, and the surrounding area yielded drugs, guns, ammunition,

and cash. As a result, the government charged both individuals

with possessing marijuana with intent to distribute, 21 U.S.C. §

841(a)(1), and possessing a rifle in furtherance of that drugtrafficking crime, 18 U.S.C. § 924(c)(1)(A). Oquendo-Garcia pled

guilty to the gun offense, and the government dismissed the drug

count. Molina-Velazquez pled guilty to both. 

As a result of his plea, Oquendo-Garcia faced a statutory

mandatory minimum sentence of 60 months in prison. 

§ 924(C)(1)(a)(i). Section 2K2.4(b) of the Sentencing Guidelines

adopts that mandatory minimum as the recommended guidelines

sentence, and the probation department applied it in OquendoGarcia's pre-sentence report. Nonetheless, the district court

determined that an 84-month sentence was more appropriate, given

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Oquendo-Garcia's extensive criminal history. Oquendo-Garcia

immediately moved for reconsideration, which the district court

denied. He then timely filed this appeal.

When appropriate, we apply a two-step test to evaluate

the reasonableness of a criminal sentence. United States v.

Politano, 522 F.3d 69, 72 (1st Cir. 2008). First, we consider

whether the district court committed any procedural missteps when

imposing the sentence. Id. Then, we ask whether the sentence was

substantively reasonable. Id. Oquendo-Garcia presents arguments

at both steps. 

Initially, Oquendo-Garcia asserts that the district court

departed from the sentencing guidelines, without first providing

him with the required notice. See Fed. R. Crim. P. 32(h) (noting

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"). He acknowledges that plain error applies to

this claim and that he must therefore show an error that "was clear

or obvious, and that it both affected his substantial rights and

seriously impaired the fairness, integrity, or public reputation of

judicial proceedings." United States v. Ramos-González, 775 F.3d

483, 499 (1st Cir. 2015) (citation and internal quotation marks

omitted). 

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To establish an error, he points to Application Note 2 of

U.S.S.G. § 2K2.4(b) which says, "[A] sentence above the minimum

term required by 18 U.S.C. § 924(c) . . . is an upward departure

from the guideline sentence . . . [which] may be warranted, for

example, to reflect the seriousness of the defendant's criminal

history." Accordingly, he believes that the court's increase here

was, by definition, a departure. 

Oquendo-Garcia's claim turns on whether the court

departed or varied from the guidelines, as Rule 32(h) notice is

only required for the former. Irizarry v. United States, 553 U.S.

708, 716 (2008). As we have noted, "departure" has a technical

meaning in the sentencing context; it refers to specific deviations

imposed in accordance with a statute or a specific guidelines

provision. United States v. Vega-Santiago, 519 F.3d 1, 3 (1st Cir.

2008) (en banc). Variances, meanwhile, exist as a result of the

advisory nature of the guidelines. They permit the district court,

"after calculating the guideline sentence (including any

departure), to impose a different sentence based on the broader

criteria identified in the statute." Id. We will treat a

"sentence above [a] statutory mandatory minimum [under section

924(c)] as an upward variance," United States v. Rivera-González,

776 F.3d 45, 49 (1st Cir. 2015), absent some indication in "the

sentencing record [which] persuades us that the district court

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intended to or in fact applied an upward departure," see United

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

Here, the sentencing record makes plain that the court

applied a variance, rather than a departure. First, nothing in the

record -- ranging from the PSR to the sentencing hearing --

suggests that the district court ever considered a departure under

Application Note 2. Further, the district court followed the steps

typical of a variance when imposing the sentence: it calculated the

guidelines range, examined the factors, and imposed an aboveguidelines prison term. See, e.g., Aponte-Vellon, 754 F.3d at 93. 

If there were any question, the court's explicit invocation of 18

U.S.C. § 3553(a) at the time that it augmented the sentence sheds

light on the court's intent. For the simple reason that the court

varied, rather than departed, there was no Rule 32(h) error.1

Oquendo-Garcia also challenges the substantive

reasonableness of his sentence. He argues that he was less

culpable than his co-defendant since he was convicted on only one

of the two charges, having only constructively possessed the rifle. 

In contrast, Molina-Velazquez had actual possession of the rifle

In any event, Oquendo-Garcia would be unable to establish 1

that the error affected his substantial rights on plain error

review. The PSR and the plea agreement provided him with notice

that the court could impose an above-guidelines sentence under

§ 3553(a). He was thus on notice that the court could augment his

sentence based on his criminal history. 

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and was convicted of both crimes. Yet, the court only sentenced

Molina-Velazquez to 66 months in prison.

We review this substantive challenge under the

"deferential abuse-of-discretion standard." United States

v. Battle, 637 F.3d 44, 50 (1st Cir. 2011) (citation and internal

quotation marks omitted). "[T]here is not a single appropriate

sentence but, rather, a universe of reasonable sentences," RiveraGonzález, 776 F.3d at 52, and our goal is to determine whether the

district court provided "a plausible sentencing rationale and a

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

Cir. 2008). When considering a disparity-based argument in

particular, our concern is primarily "with national disparities,"

though "we have also examined arguments . . . that a sentence was

substantively unreasonable because of the disparity with the

sentence given to a co-defendant." United States v. ReverolRivera, 778 F.3d 363, 366 (1st Cir. 2015). 

Even if we agreed that Oquendo-Garcia was "less" culpable

than Molina-Velazquez, his argument nonetheless fails since the

district court imposed a reasonable sentence based on OquendoGarcia's individualized criminal history. The sentencing judge

emphasized that this was Oquendo-Garcia's third firearm conviction,

on top of nine other weapon charges. The court stated, "[OquendoGarcia] is not unfamiliar with weapons . . . [A]pparently he's been

very much attracted to firearms." This was, moreover, only a

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sampling of the defendant's criminal past. Thus, relying on this

criminal history, the court reasonably determined that an aboveguidelines sentence was necessary to promote "respect for the law"

and to protect "the public from further crimes by Mr. Oquendo." 

These are defensible concerns. See 18 U.S.C. § 3553(a); see also

United States v. Del Valle-Rodríguez, 761 F.3d 171, 176 (1st Cir.

2014) (noting that concerns over recidivism are valid reasons to

impose an upward variance); United States v. Flores-Machicote, 706

F.3d 16, 23 (1st Cir. 2013) (stating that the need for deterrence

"must be assessed in case-specific terms" and can justify an upward

variance").2

Oquendo-Garcia argues that he and Molina-Velazquez were

sufficiently alike and thus the court's justification cannot

account for the sentencing disparity. But he does little more than

broadly profess that the two cohorts had "similar criminal

histories." While he provides a single record citation in the

facts section of his brief to his co-defendant's PSR, he does not

actually tell us what information in the PSR would support his

claim, nor does he provide us with the actual document. He has

quite simply failed to sufficiently develop this argument.

Oquendo-Garcia also states that the "district court erred in 2

considering and applying Oquendo's criminal history in its

sentencing calculus." But, he fails to provide any explanation of

how the court erred in that respect. Accordingly, any such claim

is waived. See United States v. Oladosu, 744 F.3d 36, 39 (1st

Cir. 2014) ("Because the argument is underdeveloped, it is

waived.").

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Despite the lack of argument, we have reviewed MolinaVelazquez's PSR anyway to assess the validity of Oquendo-Garcia's

claim, given the disparity in the co-defendants' sentences. A

comparison of the two, however, shows that the defendants were not

"similarly situated," United States v. Vargas, 560 F.3d 45, 52 (1st

Cir. 2009), such that giving Oquendo-Garcia a longer sentence than

Molina-Velazquez was unreasonable. The PSRs showed that OquendoGarcia had more weapons-based (and overall) convictions and arrests

than did Molina-Velazquez. United States v. Mateo-Espejo, 426 F.3d

508, 514 (1st Cir. 2005) ("A well-founded claim of disparity,

however, assumes that apples are being compared to apples."). And,

the district court specifically noted when sentencing OquendoGarcia that it was concerned with his "prior criminal offenses,"

including convictions and arrests, and his apparent attraction to

firearms. 

Accordingly, since the district court's "explanation,

though brief, contained a clear, cogent, and coherent rationale for

its decision," United States v. Madera-Ortiz, 637 F.3d 26, 31 (1st

Cir. 2011), and since there were no other errors, we affirm. 

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