United States Court of Appeals 

For the First Circuit 

No. 17-1806 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

FRANCISCO SEVERINO-PACHECO, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

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

Before 

Lynch, Stahl, and Barron, 

Circuit Judges. 

Mauricio Hernandez Arroyo and Law Offices of Mauricio 

Hernandez Arroyo on brief for appellant. 

Rosa Emilia Rodriguez-Velez, United States Attorney, Mariana 

E. Bauza-Almonte, Assistant United States Attorney, and Julia M. 

Meconiates, Assistant United States Attorney, on brief for 

appellee. 

December 18, 2018 
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STAHL, Circuit Judge. Defendant-Appellant Francisco 

Severino-Pacheco ("Severino") appeals his sentence for illegal 

possession of a machine gun. Following Severino's guilty plea, 

the district court calculated a Sentencing Guidelines 

("Guidelines") range of 24 to 30 months. The district court 

ultimately imposed an above-Guidelines sentence of 40 months, 

noting, inter alia, that Severino had recklessly fired an automatic 

weapon in a neighborhood. 

On appeal, Severino challenges the procedural and 

substantive reasonableness of his sentence. He contends that the 

district court erred by relying on disputed facts and abused its 

discretion in imposing an above-Guidelines sentence. Finding no 

reversible error or abuse of discretion, we affirm. 

I. Factual Background 

Because this sentencing appeal follows from a guilty 

plea, we "glean the relevant facts from the plea agreement, the 

change-of-plea colloquy, the presentence investigation report 

[PSR], and the transcript of [sentencing]." United States v. 

Fernández-Cabrera, 625 F.3d 48, 50 (1st Cir. 2010). 

On February 10, 2017, the Puerto Rico Police Department 

("PRPD") in San Juan received a call reporting a speeding vehicle 

and gunfire in the Hato Rey Este Precinct. PRPD officers in Hato 

Rey also heard gunfire and observed a black vehicle speeding with 

its headlights turned off coming from the direction of the gunfire. 
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Those officers pursued the vehicle and eventually stopped it, but 

the driver fled and was never located. However, officers were 

able to apprehend the vehicle's passenger, later identified as 

Severino. 

Officers conducted a safety frisk of Severino and 

discovered a .357 caliber firearm with an empty magazine hidden in 

his groin area, along with a black holster, two cell phones, and 

$181 in cash. Officers secured the firearm and placed Severino 

under arrest. In a separate search, officers recovered 14 shell 

casings from .357 caliber bullets from the area where the gunfire 

was reported. 

After Severino was transported to the local precinct 

headquarters, he was read his Miranda rights, and thereafter 

refused to speak with PRPD officers. Later, special agents from 

the Homeland Security Investigations ("HSI") Public Safety Group 

arrived and again read Severino his rights. After this recitation, 

Severino waived his rights and voluntarily spoke with the agents. 

Severino told the HSI agents that he was with the driver 

of the vehicle, whom he refused to identify, when he "decided to 

fire a 'burst' from his firearm outside the [car] window for no 

apparent reason." Severino added that he "did not have the high 

capacity magazine fully loaded, but he only had around 14 rounds 

inside it." He also admitted to purchasing the gun for $1,600, 

knowing that it was modified to operate as a fully automatic 
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weapon. Upon examination, it was revealed that the weapon in 

question was a firearm as defined by 18 U.S.C. § 921(a)(3)(A) and 

a machine gun as defined by 26 U.S.C. § 5845(b). It was further 

determined that the firearm travelled in or affected interstate 

and/or foreign commerce. 

II. Procedural Background 

On April 4, 2017, Severino pleaded guilty to illegal 

possession of a machine gun in violation of 18 U.S.C. § 922(o). 

His base offense level was 20, which was subsequently reduced three 

levels pursuant to U.S.S.G. § 3E1.1(a)-(b) for acceptance of 

responsibility, yielding a final offense level of 17. Severino's 

Criminal History Category was determined to be I, resulting in a 

Guidelines range of 24 to 30 months. Severino did not file any 

written objection to the PSR. 

At sentencing, defense counsel requested a sentence of 

24 months, whereas the government requested an above-Guidelines 

sentence of 40 months. For the first time, defense counsel voiced 

concern that the government's sentencing memorandum included 

Severino's admission to firing the weapon:1

[The] Government is requesting an upward 

variance based [in part on] Mr. Severino 

admit[ing] to firing the gun. But . . . when 

[the] Government offered [in its sentencing 

memorandum] what they would be able to prove 

beyond a reasonable doubt in this case, that 

 1 Defense counsel did not explicitly frame this as an 

objection. 
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fact was not mentioned. It wasn't mentioned 

because we had previously spoken with [the 

prosecutor] about it [but Severino] does not 

admit to having stated that. 

. . . 

[The proffer] admissions were limited to [the 

facts] that he had purchased the gun for 

$1,600, and that he knew that that firearm had 

been welded, but nothing was stated about the 

alleged shooting. 

. . . 

No evidence of corroboration by the police has 

been given to us. For example, this interview 

was not recorded. Another example, if [it] 

was the case[] that Mr. Severino did admit to 

[firing the weapon], no paraffin testing to 

show that he had gunpowder residue was done. 

Also, Your Honor, no report linking these 

alleged casings that were found to match the 

firearm that Mr. Severino was in possession 

of. 

Notably, defense counsel did not address the PSR's statement that 

Severino admitted to firing the weapon, a fact the district court 

explicitly relied on in determining Severino's sentence: 

The Court has given weight to the fact that 

Mr. Severino admitted to possessing an 

automatic firearm knowing that it was illegal 

to do so and that for no apparent reason he 

fired the weapon without hesitation regardless 

of the consequences. That act was 

irresponsible and put at risk lives of 

innocent [people] who could have been caught 

in the path of the bullets. 

The district court also considered the sentencing factors 

enumerated in 18 U.S.C. § 3553(a), including the "nature and 

circumstances" of the offense, along with government statistics 
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concerning gun ownership and violent crimes in Puerto Rico, and 

the need for deterrence. 

 Weighing these factors, the district court ultimately 

sentenced Severino to 40 months' imprisonment followed by three 

years' supervised release. It explained that "a sentence above 

the guideline range reflects the seriousness of the offense, 

promotes respect for the law, protects the public from further 

crimes by Mr. Severino, and addresses the issues of deterrence and 

punishment." This timely appeal followed.

III. Analysis 

On appeal, Severino raises a variety of claims as to his 

sentence. It is unclear from his brief to what extent he is 

raising a claim of substantive as well as procedural error; 

however, it appears that he argues that his ultimate sentence was 

substantively unreasonable as the result of procedural mistakes. 

We will first address his arguments regarding the district court's 

factfinding -- which are undoubtedly procedural in nature -- before 

proceeding to his challenge to the ultimate sentence, which appears 

to have both procedural and substantive elements. 

A. Procedural Challenge to Factfinding 

 Severino first argues that his sentence was procedurally 

unreasonable because the district court relied on facts that were 

not established. Specifically, he claims that the court improperly 

relied on the PSR in finding that he admitted to firing the weapon. 
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He further contends that his purported admission came during an 

unrecorded interview that violated a policy set forth in a 

Department of Justice ("DOJ") memorandum.2 We reject his argument 

for two reasons. 

First, Severino never filed a written objection to 

either the original PSR submitted on June 7, 2017, or the amended 

PSR filed on June 9, 2017.3 "Generally, a party has 14 days after 

receipt of a presentence report within which to object in writing 

to, inter alia, 'material information' contained in that report." 

United States v. Cortés-Medina, 819 F.3d 566, 569 (1st Cir. 2016) 

(citing Fed. R. Crim. P. 32(f)(1)).4 Following that period, if no 

 2 This argument rests on Severino's belief that HSI agents 

violated a DOJ policy creating a "presumption in favor of recording 

. . . statements made by individuals in the custody of the FBI, 

the DEA, the ATF, and the United States Marshal Service." Press 

Release 14-548, Dep't of Justice, Attorney General Holder 

Announces Significant Policy Shift Concerning Electronic Recording 

of Statements (May 22, 2014), available at 

https://www.justice.gov/opa/pr/attorney-general-holder-announces

-significant-policy-shift-concerning-electronic-recording. 

3 The differences between the two PSRs are not relevant for 

the purpose of resolving this appeal. 

4 The District of Puerto Rico’s Local Rule 132(b)(3)(A) 

similarly states: 

Within fourteen (14) days from disclosure of 

the PSR, counsel for the government and 

counsel for the defense shall file and deliver 

to the probation office, and to each other, 

written objections to the facts or guideline 

application in the PSR. If counsel have no 

objections, each shall so notify the probation 

office, and each other, in writing. A party 

waives any objection to the PSR by failing to 

comply with this rule unless the Court 
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objections have been filed, "a PSR bears sufficient indicia of 

reliability to permit the district court to rely on it at 

sentencing." United States v. Cyr, 337 F.3d 96, 100 (1st Cir. 

2003) (quotation marks and citation omitted). 

 Assuming that his objection has not been waived,5 we 

evaluate this procedural claim under the rubric of plain error. 

Plain error review "entails four showings: (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. Perretta, 804 F.3d 53, 57 

(1st Cir. 2015) (citation and quotation marks omitted). "Plain 

error review is not appellant-friendly," Cortés-Medina, 819 F.3d 

at 569, and "[t]he party asserting plain error bears the burden of 

 

determines that the basis for the objection 

was not reasonably available prior to the 

deadline. 

5 Severino's failure to object to the PSR has potential 

implications for the standard of review, as it might be interpreted 

as a waiver. "A party waives a right when he intentionally 

relinquishes or abandons it." United States v. Rodriguez, 311 

F.3d 435, 437 (1st Cir. 2002) (citations omitted). By contrast, 

a party forfeits a right when he "fails to make a timely assertion 

of [that] right." Id. (citation omitted). While waived issues 

cannot be resurrected on appeal, forfeited issues may still be 

reviewed, "albeit for plain error." United States v. GaffneyKessell, 772 F.3d 97, 100 (1st Cir. 2014) (citations omitted). In 

any event, we need not decide whether this procedural argument was 

waived because it fails even under the more lenient forfeiture 

standard. 
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persuasion," United States v. Pabon, 819 F.3d 26, 33 (1st Cir. 

2016) (citation omitted). 

Here, Severino fails to even attempt to explain how the 

plain error standard has been satisfied. As we have stated before, 

"[i]t is not enough merely to mention a possible argument in the 

most skeletal way, leaving the court to do counsel's work, create 

the ossature for the argument, and put flesh on its bones." United 

States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). Accordingly, 

even applying plain error review, Severino has waived any appellate 

argument concerning the procedural reasonableness of his sentence. 

See Pabon, 819 F.3d at 33-34 (holding failure to attempt to meet 

the four-part burden under plain error review constitutes waiver).6

Second, we note that even if an objection had been 

properly made to the PSR, and notwithstanding the likely appellate 

waiver, Severino's argument necessarily fails. As we have stated, 

"[t]he defendant is free to [timely] challenge any assertions in 

the PSR with countervailing evidence or proffers, in which case 

the district court is obliged to resolve any genuine and material 

 6 Severino relies on United States v. Rodríguez-Meléndez, 828 

F.3d 35 (1st Cir. 2016) for the proposition that the district court 

committed procedural error. In that case, we vacated a 36-month 

sentence and remanded the matter for resentencing when the district 

court committed erroneous factfinding. See id. at 39-40. However, 

that case is inapposite because the district court’s factfinding 

in Rodriguez-Melendez directly contradicted the relevant PSR. See 

id. at 37. By contrast, here both the original and amended PSR 

explicitly stated that Severino admitted to firing the machine 

gun. 
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dispute on the merits." Cyr, 337 F.3d at 100. If, however, "the 

defendant's objections to the PSR are merely rhetorical and 

unsupported by countervailing proof, the district court is 

entitled to rely on the facts in the PSR." Id. (citation omitted). 

At sentencing, Severino provided the district court with 

no evidence to substantiate his claims, nor did he propose to 

provide any such evidence. Therefore, the district court did not 

err in adopting the facts as stated in the PSR. See United States 

v. Grant, 114 F.3d 323, 328 (1st Cir. 1997) ("[A]lthough 

[defendant] objected to certain facts in the PSR . . . [he] did 

not provide the sentencing court with evidence to rebut the factual 

assertions [contained therein] . . . . Consequently, the court 

was justified in relying on the contested facts."). 

B. Challenge to Reasonableness of Sentence 

Severino also challenges the substantive reasonableness 

of his 40-month sentence, arguing that the 10-month upward variance 

was indefensible given his personal characteristics and first-time 

offender status. In support, he points to the relatively short 

amount of time between his arrest and plea and that he was a firsttime offender. At his sentencing, Severino made no objection to 

the length of his sentence. While Severino now frames this claim 

of error as substantive, he proceeds to make a procedural argument 

criticizing the district court's weighing of the Guidelines 

sentencing factors. For analytical purposes only, we will construe 
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this argument as a challenge to both the procedural and substantive 

reasonableness of Severino's ultimate sentence. 

"For procedural challenges, 'we afford de novo review to 

the sentencing court's interpretation and application of the 

sentencing guidelines, assay the court's factfinding for clear 

error, and evaluate its judgment calls for abuse of discretion.'" 

United States v. Santa-Otero, 843 F.3d 547, 550 (1st Cir. 2016) 

(quoting United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st 

Cir. 2015)). 

By contrast, "[i]n reviewing the [substantive] 

reasonableness of a sentence outside the Guidelines range, 

appellate courts may [] take the degree of variance into account 

and consider the extent of a deviation from the Guidelines." Gall 

v. United States, 552 U.S. 38, 47 (2007). "Regardless of whether 

the sentence imposed is inside or outside the Guidelines range, 

the appellate court [] review[s] the sentence under an abuse-ofdiscretion standard." Id. at 51. Although "the standard of review 

for unpreserved challenges to the substantive reasonableness of a 

sentence remains unclear," an appellate court "only reverse[s] 

where the sentence is outside of the 'expansive universe of 

reasonable sentences.'" United States v. Rondón-García, 886 F.3d 

14, 26 (1st Cir. 2018) (quoting United States v. King, 741 F.3d 

305, 308 (1st Cir. 2014)). 
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Severino's argument fails under either standard of 

review. To the extent Severino's challenge is procedural, we find 

no fault in the court's evaluation of the Guidelines and required 

sentencing considerations. "When a court varies from the 

[Guidelines] . . . the factors deemed relevant by the sentencing 

court 'must add up to a plausible rationale' for the sentence 

imposed and 'must justify a variance of the magnitude in 

question.'" United States v. Flores-Machicote, 706 F.3d 16, 21 

(1st Cir. 2013) (citation omitted). "[T]hough a district court is 

obliged to consider all relevant § 3553(a) factors, it need not do 

so mechanically. That is, a district court is not required to 

address those factors, one by one, in some sort of rote incantation 

when explicating its sentencing decision." Ruiz-Huertas, 792 F.3d 

at 226-27 (quotation marks and citation omitted). 

In addition, "the sentencing court may take into account 

the characteristics of the community in which the crime took place 

when weighing the offense's seriousness and the need for 

deterrence." United States v. Zapata-Vázquez, 778 F.3d 21, 23 

(1st Cir. 2015) (citations omitted). "Community-based 

considerations are inextricably intertwined with deterrence . . . 

[and] the incidence of particular crimes in the relevant community 

appropriately informs and contextualizes the relevant need for 

deterrence." Flores-Machicote, 706 F.3d at 23. "After all, a 

heightened need for deterrence may well exist in a community where 
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violent crime is running rampant." United States v. Narváez-Soto, 

773 F.3d 282, 286 (1st Cir. 2014) (citation omitted). 

"Nevertheless, '[a] sentencing judge's resort to community-based 

characteristics does not relieve him or her of the obligation to 

ground sentencing determinations in case-specific factors. It is 

possible for a sentencing judge to focus too much on the community 

and too little on the individual.'" Santa-Otero, 843 F.3d at 

551-52 (citation omitted). "When . . . the district court 

explicitly states that it has considered the § 3553(a) factors, 

such a statement is entitled to some weight." Ruiz-Huertas, 792 

F.3d at 227 (quotation marks, alterations, and citation omitted). 

Severino does not offer any evidence to suggest that the 

district court improperly or incompletely considered § 3553(a) 

factors or his personal circumstances. See Santa-Otero, 843 F.3d 

at 552 ("Because the District Court expressly took note of the 

case-specific factors of [defendant's] criminal history and the 

specific firearm and ammunition [he] possessed, the District Court 

sufficiently emphasized the case-specific factors relative to the 

community-based characteristics."). The record indicates that the 

court did so explicitly, noting Severino's lack of relevant 

criminal history, acceptance of responsibility, age, education, 

and history of employment. Even if the emphasis on his personal 

circumstances was not as apparent as Severino would have preferred, 

"brevity is not to be confused with inattention.'" United States 
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v. Santiago-Rivera, 744 F.3d 229, 233 (1st Cir. 2014) (quotation 

marks and citation omitted). 

In addition, Severino appears to take umbrage with the 

district court's statement that "the Court of Appeals has 

indicated[] this Court must consider Puerto Rico's high firearms 

and violent crime rate to impose the sentence in this case." While 

the usage of the term "must" was an error, Severino fails to show 

how that usage was prejudicial. After all, district courts 

regularly take into account "[c]ommunity-based considerations." 

E.g., Flores-Machicote, 706 F.3d at 23. The district court, 

notwithstanding the usage of the word "must," clearly justified 

the weight placed on this factor, noting the high level of violent 

crime in Puerto Rico, and importance of "preventing criminal 

behavior by the population at large, not just by the defendant 

being sentenced." Therefore, the error was harmless. 

To the extent Severino's challenge is substantive, with 

the foregoing considerations in mind, the district court acted 

well within its discretion in imposing a 40-month sentence on 

Severino. See Santiago-Rivera, 744 F.3d at 234 ("There is rarely, 

if ever, a single correct sentence in any specific case. Instead, 

there is almost always a 'range of reasonable sentences' for any 

given offense." (citation omitted)). 
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IV. Conclusion 

For the foregoing reasons, the district court's sentence 

is AFFIRMED.