Not for Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

No. 20-1888

UNITED STATES OF AMERICA,

Appellee,

v.

FÉLIX VEGA-LA TORRES,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

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

Before

Thompson, Lipez, and Gelpí,

Circuit Judges.

Franco L. Pérez-Redondo, Assistant Federal Public Defender, 

with whom Eric Alexander Vos, Federal Public Defender, and Kevin 

E. Lerman, Research and Writing Specialist, were on brief, for 

appellant.

Gregory B. Conner, Assistant United States Attorney, with 

whom W. Stephen Muldrow, United States Attorney, and Mariana E. 

Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate 

Division, were on brief, for appellee.

July 14, 2022
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THOMPSON, Circuit Judge. Arrested near a drug point 

with a Glock pistol altered to fire automatically, Defendant later 

pled guilty under a plea agreement to illegally possessing a 

machine gun (indictment count 2). The government agreed not to 

prosecute him for possessing a gun and ammo as a felon (indictment 

count 1) and possessing a gun with an obliterated serial number 

(indictment count 3). Consistent with the agreement, the parties 

at sentencing jointly recommended that he get a 51-month prison 

stint. But not bound by the agreement, the district judge — after 

calculating a suggested guidelines range of 57 to 71 months and 

working his way through the sentencing factors in 18 U.S.C. 

§ 3553(a) — settled on 84 months, among other things.1

From that sentence Defendant appeals, calling the 13-

month above-guidelines term both procedurally and substantively 

unreasonable. Writing solely for the parties — who know the facts, 

procedural history, and arguments presented — and applying abuseof-discretion review, see United States v. Dávila-Bonilla, 968 

F.3d 1, 9 (1st Cir. 2020), we affirm, reporting only those details 

necessary to explain our reasoning.2

1 Defendant concedes, at least implicitly, that the judge 

correctly calibrated the applicable sentencing range (we say "at 

least implicitly" because Defendant does not challenge the judge's 

calibration on appeal). 

2 Defendant alleges that the government's appellate defense 

of the judge's sentence breached the agreement. It did not. See, 

e.g., United States v. Jurado-Nazario, 979 F.3d 60, 62-63 (1st 
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I

Relying on United States v. Rivera-Berríos, 968 F.3d 130 

(1st Cir. 2020), Defendant principally argues that the judge 

procedurally erred because (to quote his brief quoting RiveraBerríos, italics added by us though) "an upwardly variant sentence 

based on the 'highly dangerous and unusual' nature of machine guns 

is unreasonable when no other factor relied on is entitled to extra 

weight." That the judge commented on how "machine guns are highly 

dangerous" and "largely exist on the black market" (quotes taken 

from a section of the transcript where Defendant's judge discussed 

community-based concerns) did not relieve him of his duty to base 

his "sentencing determination [o]n individual factors related to 

the offender and the offense." See id. at 136 (quoting United 

States v. Rivera-González, 776 F.3d 45, 50 (1st Cir. 2015)). But 

here — unlike in Rivera-Berríos — factors tied either to the 

criminal or to the crime differentiate today's case from the 

ordinary machine-gun case covered by the guidelines. See United 

States v. Flores-Machicote, 706 F.3d 16, 21 (1st Cir. 2013).

A

Focusing on the "universe of things," the judge (to quote 

again from the transcript) gave individualized attention to the 

circumstances, "identif[ying] factors that do not make this case 

Cir. 2020); United States v. Carbajal-Váldez, 874 F.3d 778, 786-

87 (1st Cir. 2017).
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a mine-run machine gun case." And as we understand his position, 

Defendant argues not that the judge failed to identify those 

factors but that those factors cannot justify the 13-month upward 

variance. We think otherwise, however. 

1

To begin, the judge considered Defendant's criminal 

history — a history that includes two convictions in commonwealth 

courts for violent offenses.

A portion of the presentence investigation report 

("PIR") unchallenged below describes how (emphases ours) 

"[D]efendant illegally, maliciously, voluntarily and criminally, 

aiding and abetting with [another], used violence and intimidation 

against a police officer by resisting arrest and not allowing the 

officer to execute his duties by dragging the police officer 

through the road[,] causing the officer damages to his back and 

legs." That conviction resulted in no criminal-history points, 

thus allowing the judge to conclude that Defendant's guidelines 

range "underrepresented [his] criminal history," see United States

v. Contreras-Delgado, 913 F.3d 232, 243 (1st Cir. 2019) — which 

distinguishes his case from the mine-run, see United States v. 

Santiago-González, 825 F.3d 41, 49 (1st Cir. 2016). See generally

United States v. Gonzalez-Flores, 988 F.3d 100, 102 (1st Cir. 2021) 

(explaining that "sentencing factors, like public protection and 
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deterrence, point in favor of a longer sentence" when the 

defendant's prior crimes show "troubling patterns").

Perhaps anticipating this conclusion, Defendant argues 

— without citing any relevant legal authority — that the judge 

could not consider that offense because prosecutors pursued an 

aiding-and-abetting theory and because the record does not 

disclose "who caused an officer to be dragged." But even if we 

set his lack-of-citation problem aside, see United States v. 

Freitas, 904 F.3d 11, 21 (1st Cir. 2018) (deeming an argument 

waived because the appellant "neither cite[d] any precedent nor 

explain[ed] the lack of precedent, assuming he found none"), the 

government protests that other complications get in Defendant's 

way. Mentioning P.R. Laws Ann. tit. 33, § 5067, the government 

tells us — without being contradicted by Defendant — that an aider 

and abettor is treated as a principal under commonwealth law, just 

as under federal law. The government also notes — without drawing 

a response from Defendant — that the unchallenged description of 

Defendant's criminal conduct in the PIR states (emphasis again 

ours) that he, "aiding and abetting with [another], used violence 

and intimidation against [the] police officer . . . by dragging 

the police officer through the road[,] causing the officer" 

injuries. The bottom line is that Defendant's arguments do not 

move the needle in his favor.
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Above and beyond all this, another part of the PIR 

uncontested below describes how Defendant "illegally, maliciously, 

knowing and with criminal intent used physical force against his 

consensual partner by hitting her face with a pot lid, a car seat, 

a fan guard, his fists and legs[,] causing bleeding in her mouth 

and nose and bruises." Sentenced to probation, Defendant only got 

criminal-history points for that offense because a commonwealth 

court revoked his probation and sent him to prison. The judge 

mentioned the domestic-violence conviction in discussing 

Defendant's criminal history, which the government claims was fair 

game — an argument that Defendant does not directly respond to.

And as the government also correctly notes, we can infer that this 

conviction contributed to the judge's concern with Defendant's 

multiple convictions for physical violence. See United States v. 

Jiménez-Beltre, 440 F.3d 514, 519 (1st Cir. 2006) (en banc), 

abrogated on other grounds by Rita v. United States, 551 U.S. 338 

(2007) (emphasizing that a judge's reasoning for the sentence can 

"often be inferred by comparing what was argued by the parties or 

contained in the [PIR] with what the judge did"). But to the 

extent Defendant believes that the judge erred on this front, our 

caselaw says that a judge can consider "prior criminal history in 

both the [criminal-history category] determination and the section 

3553(a) variance analysis." See United States v. Hernández, 906 

F.3d 213, 215 (1st Cir. 2018); see also United States v. Díaz-
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Lugo, 963 F.3d 145, 156 (1st Cir. 2020) (recognizing that in 

picking a variant sentence, a judge can rely on a factor "that was 

considered in constructing the [guidelines-sentencing range] but 

not in a way that sufficiently accounts for the idiosyncrasies of 

[the] particular case"); United States v. Maisonet-González, 785 

F.3d 757, 764 (1st Cir. 2015) (holding that an "overlap between 

the [g]uidelines and other sentencing factors enumerated in 

[section] 3553(a) did not constitute double counting and is neither 

surprising nor impermissible").

2

More, the judge also considered the two counts dismissed 

under the plea agreement. As part of the agreement, Defendant 

stipulated to unlawfully possessing the gun as a convicted felon 

(count 1) and to possessing a gun with an obliterated serial number 

(count 3). And contrary to what Defendant contends, the judge 

could "consider[] the seriousness of the other charges in the 

indictment, which the parties had agreed to dismiss pursuant to 

the plea agreement." See United States v. Díaz-Rivera, 957 F.3d 

20, 28 (1st Cir. 2020). 

3

More still, the PIR contained the uncontested fact that 

Defendant (by his own admission) test-shot the machine gun. The 

government writes that this fact suggests a willingness on 
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Defendant's part to use the gun if push came to shove. And 

Defendant's reply brief does not respond to that suggestion. 

B

To summarize, because the judge grounded his decision in 

individual factors related to the offender and the offense, 

Defendant's bid to show reversible procedural error fails — i.e., 

"[w]hile the judge may have lingered longer than necessary on 

community characteristics," including when discussing his beliefs 

about gun accuracy, the notion that he did not individually tailor 

the sentence "is unfounded." See Flores-Machicote, 706 F.3d at 

24.3

II

On the substantive-reasonableness front, Defendant 

argues that "[n]o justification supported the [judge's] thirteenmonths-above-guideline-range sentence" because his "commercially 

available (but altered) handgun with ammunition falls within the 

guideline-range heartland." This basically mirrors his failed 

argument under the procedural-reasonableness label. And he does

no better using the substantive-reasonableness tag. See United 

States v. Tosi, 897 F.3d 12, 15 (1st Cir. 2018) (rejecting 

substantive-reasonableness arguments that "essentially rehash 

3 Because the grounds highlighted above suffice to justify 

the judge's decision, we need not consider the government's other 

arguments.
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[defendant's] already-rejected procedural-reasonableness 

claims"). 

Citing 18 U.S.C. § 3553(a)(6), Defendant also claims 

that his prison term creates "unwarranted sentence disparities" 

because the judge's "sentence parted ways with numerous machine 

gun cases in the District of Puerto Rico" that produced 

"sentence[s] firmly within or below the guidelines." Section 

3553(a)(6) "primarily refers to national disparities among 

similarly situated defendants." United States v. Munyenyezi, 781 

F.3d 532, 545 (1st Cir. 2015) (first emphasis omitted). 

Concentrating on the similarly-situated requirement, we note a 

couple things. "A credible claim of sentencing disparity requires 

that the proponent" give us "enough relevant information" to show 

his comparisons involve like-situated individuals. See United 

States v. Rodríguez-Adorno, 852 F.3d 168, 177 (1st Cir. 2017). 

And as the government points out — without any contradiction —

Defendant offers nothing showing his comparators had guideline 

ranges or criminal histories similar to his (among other 

shortcomings), which is enough to reject this claim. See, e.g., 

United States v. Bedini, 861 F.3d 10, 22 (1st Cir. 2017); 

Rodríguez-Adorno, 852 F.3d at 177.

III

All that is left to say is: Affirmed.