United States Court of Appeals

For the First Circuit

Nos. 22-1171

22-1172

UNITED STATES OF AMERICA,

Appellee,

v.

LUIS ÁNGEL COLÓN-CORDERO, a/k/a Luis El Loco, a/k/a El Loco,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

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

Before

Rikelman, Lipez, and Thompson,

Circuit Judges.

Alejandra Bird-López, Research and Writing Attorney, with 

whom Eric Alexander Vos, Federal Public Defender, and Franco L. 

Pérez-Redondo, Assistant Federal Public Defender, Supervisor, 

Appeals Section, were on brief, for appellant.

Julia M. Meconiates, 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.

January 19, 2024
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THOMPSON, Circuit Judge. When authorities picked up 

Luis Ángel Colón-Cordero (Colón) for violating some terms of his 

supervised release, they found evidence of other violations as 

well as evidence of new criminal conduct. And so, another in a 

long line of examples of folks slipping into a criminal-justicesystem spin cycle, Colón found himself back in court for sentencing 

hearings regarding the new criminal case against him and revocation 

of his supervised release. The parties agreed to request withinguidelines sentences, but the district court, not bound by the 

parties' recommendations, imposed an upwardly variant sentence of 

imprisonment for the new criminal conduct and a tip-top-of-theguidelines-range term of imprisonment for violating his supervised 

release, with those sentences to run consecutively. On appeal, 

Colón raises a number of arguments challenging the pronounced 

sentences as unreasonable. For reasons we'll explain, we vacate 

and remand for resentencing.

BACKGROUND

We begin with the relevant facts and travel, providing 

the bulk of the particulars now (bear with us) with plans to add 

some more detail later as needed. As usual when a sentencing 

appeal follows a plea of guilty, we draw the facts from the 

uncontested parts of the probation office's presentence 

investigation report (PSR), the plea agreement, and the transcript 
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of the sentencing hearing. See United States v. Morales-Cortijo, 

65 F.4th 30, 32 (1st Cir. 2023).

Colón's History, Supervised Release Term, 

Violations, and New Criminal Case

Back in 2017, Colón pleaded guilty to conspiracy to 

possess with intent to distribute controlled substances in 

violation of 21 U.S.C. § 846, and he was sentenced to 45 months 

and 19 days of imprisonment and 8 years of supervised release. 

Colón discharged that term of immurement and was released in 2019, 

and from there he began his term of supervised release.

Now, it is undisputed that Colón is a person with an 

intellectual disability, and, as the record makes pellucid, he has 

a history of mental health issues. Some examples: a school 

referral prompted him to see a mental health specialist when he 

was 15; he heated a car antenna, then used it to burn his forehead 

and under his eyes; he has used cigarettes to burn his forearms 

and blades to cut himself; and he has visible scars from his selfinflicted burning and cutting. And, as of his 2017 plea, a then25-year-old Colón had a history of substance abuse, including 

smoking marijuana (25 joints a day) since he was 18, and, at the 

same age, developing a use of non-prescription Xanax, Percocet, 

and Klonopin (one or two pills daily), plus occasionally mixing 

some of this drug use with alcohol.
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And so, as part of his August 2019 supervised release, 

Colón was referred to substance abuse and mental health treatment. 

The mental health treatment to which Colón was later referred in

January 2020 screeched to a halt with the advent of the global 

COVID-19 pandemic and its resulting lockdowns, but Colón continued 

his substance abuse treatment, which he reported he liked going to 

and found helpful. For 14 months during his supervised release 

term (up until he was arrested, anyway), Colón tested positive to 

cannabinoids two times out of seventeen tests (more on this later) 

and failed to report to the drug-testing program once.

Aside from those two positive drug tests, which were 

violations in and of themselves pursuant to the terms of his 

release, Colón violated another supervised release condition when

he failed to stay at his address of record (his mother's house). 

After being called out for moving out, Colón returned to his mom's 

place, but he didn't stay put long: Two days later, probation 

reported, he'd again moved out without notice. In response,

probation successfully requested an arrest warrant, and local 

authorities searched the place where Colón was thought to be 

residing. During the search, officers found under Colón's bed a 

loaded AR-style rifle with 30 rounds of ammunition along with an 

extra magazine loaded with an additional 30 rounds of ammunition. 

Colón admitted ownership of the rifle, nonchalantly observing to 
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the officers "that he liked rifles." The search team also found 

presumptive synthetic marijuana1 and rolling paper in his car.

A federal grand jury indicted Colón on a single count of 

violating 18 U.S.C. § 922, which generally proscribes certain 

categories of people from possessing firearms or ammunition. Colón 

waived his preliminary revocation hearing for the supervised

release violations and on the new charge pleaded guilty to being 

a felon in possession of ammunition (60 rounds) pursuant to a plea 

agreement.2

The parties proposed in the plea agreement an advisory 

guidelines calculation that started with a base offense level of 

22, minus three levels for acceptance of responsibility, and 

determined a total offense level (TOL) of 19. And the parties 

also agreed they'd each request a sentence within the to-be-tallied 

guidelines range for the TOL of 19 when combined with the 

undetermined Criminal History Category (CHC). The PSR landed on 

19 as the TOL, too, then laid out Colón's criminal history, 

including his Commonwealth-side drug conviction (possessing 

controlled substances and drug paraphernalia) and the federal drug 

conviction (conspiracy to possess with intent to distribute 

1 The record does not reflect that this substance was ever 

tested and confirmed to be synthetic marijuana.

2 The parties agree the agreement's waiver-of-appeal provision 

does not operate as a bar to this appeal since the provision was 

conditioned on the district court sentencing Colón to a term of 46 

months' imprisonment or less -- which condition is not met here.
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narcotics). These tabulations dictated a CHC of IV, and, together 

with the TOL of 19, yielded a guidelines sentencing range of 46 to 

57 months' imprisonment.

Each side then filed a sentencing memorandum in support 

of its recommended sentence (a low-end 46 months from Colón; a 

high-end 57 months from the government) in anticipation of the 

upcoming hearings.

The Sentencing Hearings

Before the district court in February 2022, the first 

sentencing matter taken up was Colón's new criminal case (the 

ammunition-possession indictment). Counsel for Colón started with 

some objections to the PSR, two of which are relevant to today's 

analysis. First, counsel argued the district court should append 

to the PSR a psychometric evaluation filed by the expert who'd 

examined Colón at defense counsel's request and assessed his 

intellectual disability; the district court agreed to do so. That 

matter squared away, counsel next argued that because the PSR's 

drug-use section described Colón's historically heavier use of 

substances, the PSR impermissibly suggested that, during his 

release period, Colón had been using more than just the marijuana 

to which he'd twice tested positive. The court signaled in 

response that it would consider these points in sentencing.
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Moving to her argument proper, Colón's counsel offered 

the following in support of the recommended low-end 46-month 

sentence. 

Stating what those in the sentencing world should take 

as a given, counsel set the stage by pointing out that the 

sentencing court must "make[] an individualized assessment . . . 

of Colón" when pronouncing sentence. To that end, counsel urged 

Colón's offense was not a violent one -- it was possession only, 

and his offense could be explained by Colón's intellectual 

disability, which was a big part of why, counsel explained, "the 

cards have always been stacked against" Colón. That disability 

rendered Colón -- who has an IQ equivalent to a third-grade 

education, is especially susceptible to peer pressure, and cannot 

read or write -- unable to appreciate the amount of ammunition 

loaded into the magazines, and his disability also prompted his 

comment that he likes guns. Drawing on all of this and more, 

counsel beseeched the court to balance this information against 

the need to deter and promote respect for the law when crafting an 

individualized sentence of imprisonment for his non-violent crime.

The government, on the other hand, sought a 57-month 

term of imprisonment plus a term of supervised release. In 

support, the government submitted that Colón "needs to take 

individual responsibility for his actions," part of which would be 

an acknowledgment that the rifle he possessed while on release 
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wasn't just any gun, it was a "ghost gun" (so called because guns 

of that variety have no identifying information, such as a serial 

number) loaded with 30 rounds of ammunition, suggesting he "was 

ready to use the rifle if he needed it." The government also 

pointed to Colón's conduct as "part of a broader [drug-use] 

problem" -- the government cited his use of "approximately 25 

marijuana cigarettes per day" as well as "daily" use of Xanax, 

Percocet, and Klonopin, not to mention his admission to probation 

that he sometimes mixed prescription drugs and marijuana with 

alcohol use. And, in the government's telling, Colón didn't have 

a history of seeking mental health treatment, instead opting to 

"channel[]" his anxiety and anger into "destructive" activities.

Citing its review of the 18 U.S.C. § 3553(a) factors, 

PSR, sentencing memoranda, and a document the court construed as 

Colón's allocution, the court turned to its own take on sentencing. 

The court listed then-30-year-old Colón's "history of using 

marijuana and Percocet and Xanax pills without prescriptions," and 

that he "has never received treatment" for his complained-of 

anxiety. The court noted the fact that Colón was found in 

possession of a ghost AR loaded with a high-capacity magazine with 

30 rounds of ammo, plus another magazine with the same ammo loaded 

into it (though, the court noted, Colón was charged and pled guilty 

only to possession of 60 rounds of ammo). "[H]e liked rifles," 

the court observed. Concluding the parties' recommended sentences 
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did not reflect the seriousness of this offense, address the need 

for deterrence and punishment, acknowledge the import of 

protecting the public, or promote respect for the law, the district 

court pronounced an upwardly variant 66-month term of 

imprisonment, plus a 3-year term of supervised release.

Colón's counsel objected to the above-guidelines 

sentence as unreasonable "given the fact history of [Colón]" and 

the consideration of his historical drug use as part of the 

§ 3553(a) factors assessment (given "there was a difference of his 

drug use," past versus more recent).

Immediately on the heels of that part of the hearing 

(same lawyers, same judge, same transcript -- no break in the 

action) came the final revocation hearing, where Colón's counsel 

noted that his Grade B violation advisory guidelines range was 4 

to 10 months, then requested a lower end sentence of 4 months' 

imprisonment to run concurrently with the just-imposed criminalcase sentence. For its part, the government requested a high-end 

10-month sentence.

The court revoked the 2017 supervised release term and, 

citing its review of the guidelines' policy statements on 

supervised release, the § 3553(a) factors, and "the seriousness of 

[the] violation," and noting Colón "demonstrated a lack of 

commitment and respect to the supervision process, as well as a 

disregard to the law, by constantly engaging in the illegal use of 
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controlled substances," the court imposed a 10-month sentence to 

run consecutive to the new-criminal-case sentence, followed by a 

5-year term of supervised release.

Colón's counsel requested reconsideration of "the length 

of the sentence" and urged that it should run concurrently with 

the new-criminal-case sentence. Counsel said the aggregate 76-

month sentence was quite substantial -- particularly with this 

being Colón's first revocation. "Denied," was the court's 

response.

This timely consolidated appeal followed.

DISCUSSION

Colón's appeal levels a multifaceted challenge at the 

procedural and substantive reasonableness of the sentences imposed 

by the district court. Before we dive into any of the arguments 

he makes in support of that challenge -- or any of the government's 

responses thereto -- we first lay out some preliminary method-ofreview guideposts and the reviewing lens we'll be using to examine 

Colón's asseverations.

It is axiomatic that our "review of a criminal 

defendant's claims of sentencing error involves a two-step

pavane." United States v. Miranda-Díaz, 942 F.3d 33, 39 (1st Cir. 

2019). This two-step framework is well established. Under it, 

"we first determine whether the sentence imposed is procedurally 

reasonable and then determine whether it is substantively 
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reasonable." United States v. Clogston, 662 F.3d 588, 590 (1st 

Cir. 2011). At both steps, preserved claims of error get abuseof-discretion review, see United States v. Díaz-Lugo, 963 F.3d 

145, 151 (1st Cir. 2020), and, as part of that review, we look at 

findings of fact for clear error and scrutinize questions of law 

de novo, see United States v. Carrasquillo-Vilches, 33 F.4th 36, 

41 (1st Cir. 2022).

Today, we start (and will end, as it turns out) with 

Colón's procedural-reasonableness claims. And we need train our 

focus on only some of those claims, not all, to reach our outcome. 

See, e.g., United States v. Torres-Meléndez, 28 F.4th 339, 340 

(1st Cir. 2022) (taking the same approach and nodding to the adage 

that "the 'simplest' way to handle a case is often the 'best' way" 

(quoting United States v. Cruz-Ramos, 987 F.3d 27, 39 (1st Cir. 

2021))).

Specifically, we'll take on Colón's contentions that the 

sentencing court committed error: (1) in pronouncing sentence in 

the new criminal conduct case when it failed to justify and 

adequately explain its upwardly variant sentence, which dovetails 

with what Colón says was the court's failure to engage with the

mitigating individual characteristic of Colón's intellectual 

disability, which was the primary sentencing argument the defense 

advanced; and (2) in erroneously finding during the revocation 
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sentencing that Colón was "constantly engaging in the illegal use 

of controlled substances" "through his supervision period." 

We take these arguments, and the government's 

protestations to them, in turn, applying the just-recapped abuseof-discretion framework -- despite the government's argument that 

we should don a different reviewing lens. We'll explain briefly 

why we reject the government's request.

Pointing, for instance, to what it characterizes as 

Colón's counsel's failure to object below with specificity to 

things like the sentencing court's balancing of the sentencing 

factors or the adequacy of the sentencing rationale, the government 

posits that not all of Colón's appellate contentions were preserved 

for our abuse-of-discretion review. The government submits that 

we should instead deem some arguments waived for failure to map 

them onto the resulting (and demanding) plain-error rubric or, at 

best, review those arguments for plain error.

"For a defendant '[t]o preserve a claim of procedural 

sentencing error for appellate review, [their] objection need not 

be framed with exquisite precision.'" United States v. ReyesCorrea, 81 F.4th 1, 10 (1st Cir. 2023) (alterations in original) 

(quoting United States v. Rivera-Berríos, 968 F.3d 130, 134 (1st 

Cir. 2020)). "It must, however, 'be sufficiently specific to call 

the district court's attention to the asserted error.'" Id.
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(quoting United States v. Soto-Soto, 855 F.3d 445, 448 n.1 (1st 

Cir. 2017)).

Having carefully studied the sentencing transcript in 

its totality, we conclude it is contextually clear defense 

counsel's objections sufficiently called the district court's 

attention to the perceived sentencing problems that now form the 

basis of the appellate arguments we're about to tackle. Counsel 

urged that the new-criminal-case sentence was unreasonable given 

Colón's "fact history" -- looking at things holistically, that 

objection clearly is a callback to the comprehensive arguments and 

urgings Colón's counsel had infused into the hearing, thus 

sufficiently encompassing and preserving the argument that the 

district court ignored the mitigating history and characteristics 

and didn't adequately explain its "above-guidelines sentence." 

And after the revocation sentencing, during which the district 

court referred to Colón's "constant[]" use of drugs "through his 

supervision period" in pronouncing sentence, counsel's reaction 

was to protest the length of that sentence, it running consecutive 

to rather than concurrent with the other sentence, the 

substantiality of the aggregate sentence, and the fact that Colón 

hadn't gotten all the help he really needed during the short time 

he'd been on release. And, of course, we also know that, at the 

very outset of the hearing, counsel had objected to the PSR's 

characterization of Colón's drug use historically versus while on 
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supervised release; counsel argued these same clarifications 

several times throughout the hearing.3

This is not a situation where we are faced only with a 

record that reflects a general objection to a sentence. Cf. United

States v. Ahrendt, 560 F.3d 69, 76 (1st Cir. 2009) (deeming an 

argument on appeal unpreserved because an appellant "never 

objected to the particular issues" he raised on appeal -- his 

"generic objections [could not] be fairly interpreted as giving 

notice to the court" as to those specific issues). Instead, the 

thematic protestations and objections here rather bleed together 

and certainly operated to make the district court aware of the 

defense's claimed errors. See, e.g., Reyes-Correa, 81 F.4th at 10 

(finding "[s]ubsumed within" a party's objections "the clearly 

implicit charge that the district court's explanation rested on 

improper considerations" (quoting United States v. SerranoBerríos, 38 F.4th 246, 250 n.1 (1st Cir. 2022))). Requiring more 

of defense counsel here would be unwarranted. What actually got 

3 We also note that when Colón's counsel objected to the 

district court's reliance on the PSR's characterization of Colón's 

history of drug use when announcing the 66-month sentence, the 

court remarked, "I don't think it's a good idea for you to say 

that I should not indicate what his past drug use has been," and 

indicated it might rescind its recommendation that Colón 

participate in a beneficial drug treatment program if his counsel 

pursued that argument further. Given the court's response, Colón's 

counsel cannot be faulted for deciding not to trot out the same 

just-rejected objection only minutes later at the conclusion of 

the revocation sentencing. 
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said is well in line with our preservation policy (basically, 

putting the district court on notice of the error). See HolguínHernández v. United States, 140 S. Ct. 762, 766 (2020) ("The 

question is simply whether the claimed error was 'brought to the 

court's attention.'" (quoting Fed. R. Crim. P. 52(b))); Fed. R. 

Crim. P. 51(b). 

Thus, on this record, abuse-of-discretion review it is. 

Now, we turn to the appellate contentions and the precedential 

landscape against which they appear in this case. First, the newconduct sentence; then, the revocation sentence. 

New Criminal Conduct Sentence: 

The Sentencing Explanation and Mitigating Factors

As we mentioned earlier, we need tackle only some of 

Colón's various appellate attacks. Namely, we review Colón's 

correlated attacks on the adequacy of the court's explanation for 

its upward variance in the new criminal conduct case and its 

failure to address the mitigating evidence of Colón's intellectual 

disability.4 But we'll lay out the particulars of these arguments 

4 We note right off the bat that, "[g]enerally speaking, it 

is not abundantly clear whether failure to consider mitigating 

factors goes to the procedural or substantive reasonableness of a 

sentence." United States v. Santiago-Lozada, 75 F.4th 285, 295 

n.11 (1st Cir. 2023). And "[t]he lack of an adequate explanation 

can be characterized as either a procedural error or a challenge 

to the substantive reasonableness of the sentence." United States

v. Crespo-Rios, 787 F.3d 34, 37 n.3 (1st Cir. 2015). Colón focuses 

these arguments on procedural error, and we follow suit. 
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after we provide a sampling of the wide world of pertinent 

sentencing considerations that animates our coming analysis.

The Primer

When it comes to what a court must do when pronouncing 

sentence, our jurisprudence has seen quite the evolution. See

United States v. Flores-González, 86 F.4th 399, 417-25 (1st Cir. 

2023) (Thompson, J., joined by Barron, C.J. and Montecalvo J., for 

a divided en banc court) (tracking and studying in detail the 

history and progression of federal sentencing precedent and 

parameters). Specific to the adequacy of a court's explanation 

grounding a variance from the guidelines range, here are the 

basics.

Federal law requires a sentencer to "state in open court 

the reasons for its imposition of the particular sentence." 18 

U.S.C. § 3553(c); see also Gall v. United States, 552 U.S. 38, 46, 

50-52 (2007). Just what kind of explanation is needed depends on 

the context of each individual case, Rita v. United States, 551 

U.S. 338, 356 (2007) ("The appropriateness of brevity or length, 

conciseness or detail, when to write, what to say, depends upon 

circumstances."), but sentencing courts must say enough to show an 

appellate court they "considered the parties' arguments and ha[d] 

a reasoned basis for exercising [their] own legal decisionmaking 

authority," id. When a court imposes a sentence above the 

guidelines sentencing range, "it must justify the upward 
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variance." United States v. Del Valle-Rodríguez, 761 F.3d 171,

176 (1st Cir. 2014); see also Rita, 551 U.S. at 357 (directing 

that when sentences fall outside the guidelines, sentencing judges

must "explain why" they decided not to follow the commission's 

recommendations). "[T]he greater a deviation from the [guidelines 

sentencing range], the more compelling the sentencing court's 

justification must be." Del Valle-Rodríguez, 761 F.3d at 177.

Of overarching importance in sentencing is that a 

sentencing court must always conduct an "individualized 

assessment" of the § 3553(a) factors -- which include mitigating 

characteristics of the offender -- based on the facts presented in 

a particular sentencing case. Gall, 552 U.S. at 50 (reasoning 

that any justification for a variance must be "sufficiently 

compelling to support the degree of the variance," and in all 

sentencing matters a judge is required to provide "adequate[]" 

explanations "to allow for meaningful appellate review and to 

promote the perception of fair sentencing"); see also United States

v. Booker, 543 U.S. 220, 261 (2005) (explaining that discussion of 

"[t]hose factors in turn will guide appellate courts . . . in 

determining whether a sentence is unreasonable"). How to weigh

the § 3553(a) factors falls inside a sentencing court's "informed 
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discretion." United States v. García-Pérez, 9 F.4th 48, 52 (1st 

Cir. 2021).

We do not require sentencing courts to deliver a "rote 

incantation" of each factor, and we do not expect them to apply 

equal weighting across factors. See United States v. Dixon, 449 

F.3d 194, 205 (1st Cir. 2006). We likewise do not require a 

sentencing court to "address every argument that a defendant 

advances in support of his preferred sentence." United States v. 

Rivera-Morales, 961 F.3d 1, 19 (1st Cir. 2020). When a sentencing 

court explicitly notes that it considered all the § 3553(a) 

factors, we will take that into consideration. Clogston, 662 F.3d 

at 592 (observing that when a district court says it considered 

the § 3553(a) factors, "[s]uch a statement 'is entitled to some 

weight'" (quoting United States v. Dávila-González, 595 F.3d 42, 

49 (1st Cir. 2010))). And, when it isn't readily apparent in as 

many words, we sometimes are able to infer that a sentencing court 

weighed relevant factors in explaining its pronouncement. United 

States v. Flores-Nater, 62 F.4th 652, 656 (1st Cir. 2023) ("[W]e 

have not mandated that a sentencing court follow any particular 

format in explaining an upwardly variant sentence. It is enough 

if the explanation can be gleaned 'by fair inference' from the 

sentencing record." (citation and internal quotation marks 

omitted)); see also United States v. Montero-Montero, 817 F.3d 35, 

38 (1st Cir. 2016). We resist arguments that are nothing more 
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than attempts to "substitute [a defendant's] judgment for that of 

the sentencing court." United States v. Cahill, 85 F.4th 616, 625

(1st Cir. 2023) (quoting Clogston, 662 F.3d at 593); United States

v. Ruperto-Rivera, 16 F.4th 1, 6 (1st Cir. 2021).

With this legal backdrop in place, we move on.

The Arguments

As we've previewed, Colón's attack on the reasonableness 

of the court's pronounced sentence for his new conduct goes like 

this: The court erred by failing to consider or address the 

mitigating impact of his intellectual disability and, quite 

relatedly, the court did not provide an adequate explanation for 

the upward variance. Colón all along has presented one principal 

mitigating characteristic argument -- his intellectual disability 

mitigates his culpability for his new criminal conduct (and the 

supervised release violations) in that, for example, it made him 

susceptible to being pulled into the criminal activities and 

conspiracies in which he was embroiled. He points out that, 

despite consistently arguing this mitigating characteristic 

throughout the sentencing proceedings, the court did not address 

it at all in its sentencing decision. While recognizing, as we 

have outlined above, that a sentencing court is not required to 

address every factor or every argument in making its sentencing 

decision, Colón argues that in his case, the court here cannot 

have adequately explained its upwardly varying sentence when it 
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failed to even mention his disability or the well documented impact 

it has had on his life (remember the self-mutilation).

The government relies generally on the fact that the 

sentencing court enjoys wide discretion in its consideration of 

the sentencing factors and chalks Colón's argument up to being a 

complaint about how mitigating factors were weighed, pointing out 

too that the court didn't need to address every argument Colón 

made. It submits that, because the district court was obviously 

very aware of Colón's disability (the government points, for 

instance, to the district court telling the parties it had read 

and considered Colón's sentencing memorandum, where his disability 

was highlighted in detail), its decision simply reflects that it 

considered and rejected the defense argument that the mitigating 

factor of Colón's disability warranted a lower sentence. The 

government contends the district court's explanation was 

sufficient because it focused on the offense conduct and relevant 

aggravating factors not included in the guidelines calculation to 

support the upward variance (like the loaded rifle -- a ghost gun, 

remember).

Our Take

Colón's challenge has merit. As we'll lay out, on this 

record, the district court's explanation was problematically thin, 

and its failure to consider expressly Colón's intellectual 

disability as a mitigating characteristic -- not just one of many 
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mitigating arguments below, but the principally highlighted 

argument below -- ultimately compels our conclusion that its 

explanation of the upwardly variant sentence was thus inadequate. 

As a refresher, the court's sentencing colloquy went 

like this. First, the court recited some basic facts about Colón 

and his case (his age, offenses, history of drug use, the gun --

more on this in just a moment). Then, it observed that Colón 

"requested a sentence of 46 months" while the government sought "a 

sentence of 57 months." But it reasoned "that neither sentence 

reflects the seriousness of the offense, promotes respect for the 

law, protects the public from additional crimes by Mr. Colon, nor 

does it address -- do they address the issues of deterrence and 

punishment." And then it levied its upwardly variant sentence.

On its face, this boilerplate language is insufficiently 

individualized and it is inadequate -- on its own -- to explain 

the upwardly variant sentence. See, e.g., Reyes-Correa, 81 F.4th 

at 10-11 (collecting some recent examples of similarly inadequate 

boilerplate "explanations"). "[I]t simply rehearses -- but," 

emphasis ours, it "does not apply -- certain of the factors that 

Congress has instructed courts to consider in imposing sentences." 

Id. at 11 (quoting Flores-Nater, 62 F.4th at 656, which in turn is 

citing 18 U.S.C. § 3553(a)(2)).

But what else was said? This matters because, as already 

mentioned, we readily acknowledge that sometimes a sentence can be 
- 22 -

deemed adequately explained by drawing "fair inference[s] from the 

sentencing record." Id. (quoting Montero-Montero, 817 F.3d at 

38). However, "while 'a court's reasoning can often be inferred 

by comparing what was argued by the parties or contained in the 

pre-sentence report with what the judge did,' such inferences must 

be anchored in 'what the judge did.'" United States v. 

Carrasquillo-Sánchez, 9 F.4th 56, 62 (1st Cir. 2021) (quoting 

United States v. Jiménez-Beltre, 440 F.3d 514, 519 (1st Cir. 

2006)); see also García-Pérez, 9 F.4th at 55.

Having acknowledged that it considered the § 3553(a) 

factors, PSR, and sentencing memoranda, and after laying out the 

facts of Colón's offenses, the court also mentioned: Colón's age, 

10th grade education, and employment info; his history of using 

marijuana as well as non-prescription Percocet and Xanax; his 

history of anxiety but never getting treatment for it; that he was 

found with ammunition and a loaded "ghost AR 15-style assault rifle 

with no serial number"; and that he told probation that "he liked 

rifles."

In addition to the idea that perhaps this list of 

considerations could help explain the sentencing rationale, there 

is also an argument to be made -- and the government makes it --

that the mention of the loaded ghost gun ("difficult, if not 

impossible," the court noted, for law enforcement to trace)

explains the court's variant sentence. As the government tells 
- 23 -

it, the sentencing court identified these main factors as 

justification for the variance, with its rationale hinging on being 

very troubled by the loaded ghost gun and extended magazine, not 

to mention Colón's comment that he likes guns. In the government's 

view, all of this is plenty from which we could infer an adequate 

sentencing rationale, particularly when the extent of the variance 

is so slight at "only 9 months" of extra imprisonment.

Color us unpersuaded. For one thing, as a general 

matter, we disagree with the characterization of this upward 

variance as insignificant. See Rosales-Mireles v. United States, 

138 S. Ct. 1897, 1907 (2018) (Sotomayor, J.) (reasoning, in another 

sentencing context, that "'[t]o a prisoner,' th[e] prospect of 

additional 'time behind bars is not some theoretical or 

mathematical concept[,]'" and "'any amount of actual jail time' is 

significant" (first quoting Barber v. Thomas, 560 U.S. 474, 504 

(2010) (Kennedy, J., dissenting); then quoting Glover v. United

States, 531 U.S. 198, 203 (2001))). And as a practical matter, 9 

months, which represents, for example, the length of an entire 

school year or a full-term pregnancy, would readily be understood 

as a significant time period by any reasonable measure. 

Moreover, the court's statements do not constitute an 

application of the factors or an adequate explanation -- this is

another "mere listing of the facts" that has no "emphasis on any 

particular circumstance," and thus it is "impossible to tell" what 
- 24 -

the court's rationale was for landing on this 9-month upward 

variance -- 15% up from the guidelines sentencing range. Cf.

United States v. Muñoz-Fontanez, 61 F.4th 212, 214 (1st Cir. 2023) 

(vacating a 20% upward variance there). What we have here, once 

again, is the court rehashing some basic identifying information 

and the facts that formed the basis of the new-conduct charge that 

led to the instant need for sentencing. See Reyes-Correa, 81 F.4th 

at 11; id. at 11-12 ("A summary of the events that preceded the 

[sentencing] hearing -- without more -- is an impermissible basis 

for a large upward variance.").

We need to be able to understand the reasons of the 

district court and how it arrived at its sentencing pronouncement: 

"When imposing a significant variance, a sentencing court must 

make clear which specific facts of the case motivated its decision 

and why those facts led to its decision." Muñoz-Fontanez, 61 F.4th 

at 215; see also Reyes-Correa, 81 F.4th at 13 ("If the court deemed 

the number of revocations, Reyes's behavior, or some other aspect 

of the record uniquely unacceptable, it should have so stated."). 

We grant that we certainly can conceive of different ways a ghost 

gun being in the factual mix (when the gun possession isn't already 

encompassed by the guidelines) could affect sentencing. We can 

even (speculatively) conceive of specific ways the ghost gun in 

this case might've impacted the sentencing court's analysis. But 

our point here is that we do not know which reasons -- if any --
- 25 -

were actually what the sentencing court had in mind when 

pronouncing sentence. The point, indeed, is that the court didn't 

say. See Gall, 552 U.S. at 50 (instructing that sentencing courts 

must offer "adequate[]" explanations "to allow for meaningful 

appellate review and to promote the perception of fair 

sentencing").

Now, it is not sufficiently clear to us that the court's 

mention of the ghost gun connects the necessary inferential dots 

to reveal a strong justification for the variance. But even if 

enough "fair inferences" could carry the day here to divine a 

ghost-gun-anchored justification that would pass muster,5 see

Flores-Nater, 62 F.4th at 656 (noting that it is sometimes possible 

for us to draw inferences from the sentencing record in concluding 

that a district court adequately explained a variance), another 

problem with the court's sentencing explanation looms: its failure 

to mention, let alone engage with, Colón's intellectual disability 

as a mitigating characteristic. The conspicuous absence of any 

mention of that characteristic smacks of a failure to make an 

individualized assessment of Colón. We explain.

5 Given where we land analytically today, we need not and do 

not make any per-se judgment as to the impact possession of a ghost 

gun ought to have on a sentencing calculus. As always when it 

comes to fashioning a sentence, the role of any given fact -- ghost 

gun or otherwise -- in any given sentencing record should be 

carefully assessed individual case by individual case.
- 26 -

Some distinctions are helpful as a starting point. 

Colón's case is not one in which the district court quite clearly 

addressed certain things, but an appellant nonetheless complains 

it did not, see, e.g., García-Pérez, 9 F.4th at 52 (rejecting a 

defendant's argument that the court failed to consider mitigating 

factors of his youth and prior clean record when the court had 

expressly mentioned both),6 and (despite the government's 

suggestion to the contrary) it is similarly unlike the related 

class of cases where a defendant attempts to superimpose his own 

preferred weighing of the sentencing factors, see, e.g., RupertoRivera, 16 F.4th at 6 (rejecting a mitigating-factors challenge 

when the appellant's "plaint boil[ed] down to a lament that the 

court did not weigh the aggravating and mitigating factors as 

counsel would have preferred"). Colón's case is likewise unlike 

those where a defendant trains his gaze on a sentencing court's 

failure to address one of his arguments -- when our caselaw is 

clear that, in fact, it need not "address every argument that a 

defendant advances in support of his preferred sentence." RiveraMorales, 961 F.3d at 19 (emphasis added). 

6 Additional examples for the curious reader: Cahill, 85 

F.4th at 625 (rebuffing a defendant's claim of error as to the 

district court's dismissal of multiple mitigating factors he'd 

argued when the court "expressly consider[ed] those factors"); and 

Ruperto-Rivera, 16 F.4th at 6 (finding a court "dealt explicitly 

with" a rehabilitation mitigation argument and therefore rejecting 

a defendant's accusation that the court had disregarded that 

mitigating factor).
- 27 -

Colón's case stands apart from these types of appeals 

for the simple reason that he isn't complaining about how a bunch 

of important mitigating factors were discarded or weighed wrong; 

he isn't arguing that some of his arguments were given short shrift 

or misunderstood. His position is that the mitigating individual 

characteristic and the argument about it were completely ignored. 

And on this record, he has a point.

True, the district court here stated that it considered 

the § 3553(a) factors. And while we give "some weight" to that 

statement, Dávila-González, 595 F.3d at 49 (citing United States

v. Morales-Machuca, 546 F.3d 13, 26 (1st Cir. 2008)), we still 

must decide whether the court applied the factors reasonably.

We conclude the court fell short in this regard. This 

is because it is nose-to-face plain from the record that the 

district court never engaged with Colón's intellectual disability 

as a mitigating characteristic. Colón's steadfast theory 

throughout the sentencing proceedings was that his intellectual 

disability affects sentencing at many levels, including 

culpability, deterrence, and recidivism -- counsel all but jumped 

up and down to call attention to all of this. Yes, we are mindful 

that the court didn't need to address every argument raised, nor 

did it need to weigh the § 3553(a) factors in any particular way. 

But "[t]he relative weight of each factor will vary with the 

idiosyncratic circumstances of each case," Dixon, 449 F.3d at 205, 
- 28 -

and on this record, given Colón's paramount emphasis on this 

individual characteristic as the mitigation argument, it is 

reasonable to conclude that the sentencing court should have 

engaged with it, see, e.g., Rita, 551 U.S. at 357 (teaching that 

when a party "presents nonfrivolous reasons for imposing a 

different sentence," sentencing courts should "explain why [the 

court is] reject[ing] those arguments" -- "[s]ometimes the 

circumstances will call for a brief explanation; sometimes they 

will call for a lengthier explanation," but "[w]here the 

[sentencing court] imposes a sentence outside the Guidelines, the 

[court] will explain why [it] has done so" (emphasis added)). See 

also United States v. Robles-Alvarez, 874 F.3d 46, 53 (1st Cir. 

2017) (deeming a sentence unreasonable when, "despite the 

appellant's repeated attempts" to get the sentencing court to 

consider a "potentially forceful [sentencing] argument," the court 

"fail[ed] to even mention the [sentencing] issue" and "did not 

even provide a cursory explanation for its rejection of his 

argument").7

7 In a footnote, the government tells us Robles-Alvarez is

neither here nor there because the facts there were unique since

the appellant was sentenced to life in prison while his 

coconspirators received significantly lesser sentences, 874 F.3d 

at 52, and "Colón's case does not fit within [this] unique 

framework." All sentencing cases' facts are unique -- that is 

precisely the point of our sentencing jurisprudence that requires 

individualized assessment of each and every defendant to be 

sentenced. That said, and as Colón points out, we see quite a few 

pertinent similarities between Robles-Alvarez and the instant 
- 29 -

As for possible inferences here, we run headlong into 

the issue we canvassed above -- the court did not say enough from 

which we could fairly infer how it felt about Colón's dominant 

mitigation argument. The government argues the district court

"acknowledged" the argument by noting that it had reviewed the 

PSR, sentencing memos, and expert report that raised the mitigating

characteristic. But on this record, it is simply a bridge too far 

for us to say the district court meaningfully considered, let alone 

adequately explained, how Colón's specific individual 

circumstances impacted the final sentencing decision. Rita, 551 

U.S. at 356 (instructing that sentencing courts must say enough to 

show an appellate court they "considered the parties' arguments"). 

Same goes for how the ghost gun fits into any of this, i.e., 

whether the court's recitation of information about the ghost gun 

could suggest the court determined that fact and its attendant 

circumstances outweighed the mitigating characteristic of Colón's 

disability -- the court did not say, and there is insufficient 

record material to permit such an inferential leap.

matter (both defense sentencing memos focused on a mitigating 

factor to argue for a lower sentence, that argument was a primary 

focus at the sentencing hearing, and the sentencing court said 

nothing about the argument when pronouncing sentence). Id. The 

fact that the substance of the ignored "potentially forceful" 

argument might differ from case to case does not alter our 

reasoning today.
- 30 -

Here's where all of this leaves us: The district court 

abused its discretion as it relates to the sentencing imperatives 

of individualized review of the § 3553(a) factors and the adequacy 

of the explanation for its upwardly variant sentence.

Revocation Sentence: "[C]onstantly engaging" in drug use 

"through his supervision period"

Our remaining task is to examine Colón's contention that 

the district court erroneously found during the revocation 

sentencing that, "through his supervision period," Colón was 

"constantly engaging in the illegal use of controlled substances." 

According to Colón, this finding is clearly erroneous -- recall 

from many pages ago that the record reflects that Colón tested 

negative for cannabinoids fifteen times during his release, 

otherwise testing positive only twice (in December 2019 and June 

2020, and for cannabinoids only) in the 14-month testing window. 

Colón notes that the PSR certainly (and misleadingly, he says) 

delved into his historical and more consistent abuse of harder 

drugs, but that prior use in no way reflected Colón's behavior 

during his supervised release period. Colón also points out that 

at the sentencing hearing the government may have further muddied 

the waters by using the present tense to describe his prior drug 

use -- stating that he "smokes approximately 25 marijuana 

cigarettes per day . . . as well as taking Xanax, Percocet, and 
- 31 -

Klonopins on a daily basis" and that he "mixes the prescription 

drugs and . . . marijuana with . . . alcohol."

The government's rebuttal is that the record supports a 

conclusion that the district court was well aware Colón had only 

two positive tests, but also knew Colón missed a drug test and 

purported synthetic marijuana and rolling paper were found in his 

car when he was arrested. The court had before it the PSR and 

defense counsel's many arguments about it. So, the government 

says, the district court fully appreciated the evidence of Colón's 

drug use during his supervised release, and its statement about 

"constant[]" use "is best characterized as an inartful slip of the 

tongue."

"[S]electing a sentence based on clearly erroneous

facts" is an example of a "significant procedural error," United

States v. Navarro-Santisteban, 83 F.4th 44, 55 (1st Cir. 2023) 

(alteration in original) (quoting Gall, 552 U.S. at 51), and such 

an error "warrant[s] 'revers[al] unless the government shows the

mistake did not affect the sentence,'" id. (second alteration in 

original) (quoting United States v. Colón-Maldonado, 953 F.3d 1, 

4 (1st Cir. 2020)). But "[c]lear-error review is demanding: this

standard will be satisfied only if, upon whole-record-review, an

inquiring court forms a strong, unyielding belief that a mistake

has been made." United States v. Rivera-Nazario, 68 F.4th 653, 

658 (1st Cir. 2023) (quoting United States v. Nuñez, 852 F.3d 141,
- 32 -

144 (1st Cir. 2017)). "As long as the district court's decision 

is based on reasonable inferences drawn from adequately supported 

facts, we will not find clear error." Id.

Here, it is very clear a mistake has been made: This 

record does not reliably support a finding that Colón was 

"constantly engaging in the illegal use of controlled substances" 

"through his supervision period." As Colón quite aptly 

crystallizes it, the district court "either misunderstood that the 

information in the PSR did not apply to Mr. Colón's current 

conduct, or it otherwise mistakenly believed the record supported 

a finding of 'constant' 'use'" -- "[e]ither way, the court 

irreversibly erred." As we'll unpack, he is correct.

To the extent the district court misunderstood that 

Colón was using drugs during his supervised release period the 

same way he had many years earlier, that was, simply put and on 

this record, clear error. The record evidence shows the only time 

Colón "constantly"8 used drugs was years earlier (back when he 

smoked 25 joints a day and took Xanax, Percocet, and Klonopin 

8 "Constantly" is defined as "without variation, deviation, 

or change" and "with regular occurrence." Constantly, MerriamWebster Online Dictionary (Jan. 5, 2024)

http://www.merriam-webster.com/dictionary/constantly

[https://perma.cc/T6XX-METW]; see also Constantly, Oxford English 

Dictionary Online (Jan. 5, 2024) 

https://www.oed.com/dictionary/constantly_adv?tab=meaning_and_us

e&tl=true#8389233 [https://perma.cc/E7NX-T3LM] (defining 

"constantly" as "[i]nvariably, uniformly, regularly, in every 

case, always"; "[c]ontinually, perpetually, incessantly, always").
- 33 -

daily, sometimes even mixing prescription drugs with alcohol). 

The government does not dispute this; it just insists the district 

court was well aware that Colón's past use was just that -- past 

-- because the court indicated that it had read Colón's objections 

to the PSR and Colón's counsel labored to clarify the PSR's 

freewheeling narrative of Colón's drug use. This would be a 

reasonable reading of things but for what the court actually said

when imposing the revocation sentence. The court quite clearly 

stated (emphases are ours) that Colón's drug use "through his 

supervision period" was "constant[]." We cannot reconcile that 

characterization with what the record actually reflects, nor are 

we willing to chalk it up to "an inartful slip of the tongue" as 

the government suggests we should.

To the extent the district court was drawing inferences 

to find the drug use during Colón's term of supervised release was 

constant, that approach meets the same clear-error fate. A 

"constantly" using inference is wholly implausible on this record 

because there are no adequately supported facts to permit it. 

Instead, what the record clearly reflects is that fifteen of 

seventeen tests came back negative, the two positives (for 

cannabinoids only, remember) were 6 months apart, Colón had been 

engaged in his drug treatment program, and the presumptive pot 

found in Colón's car was never even tested. These are not 
- 34 -

"constantly" using facts, nor do they even approach a set of facts 

that would permit such an inference.

And so, either reading of the district court's finding 

would yield the same clear-error conclusion for us.

Resisting this conclusion and trying to show us any

mistake in this regard didn't affect Colón's sentence, the 

government reasons that the court's reliance on the drug tests 

wasn't an instance of the proverbial tail wagging the dog since 

the tests were just one of several violations the court relied on 

when imposing sentence. True enough, the court had before it 

evidence of Colón's other violations. But on this record, we do 

not know precisely to what degree the court relied on its erroneous 

constant-use fact, whether based on a misunderstanding of the 

record or extrapolated from the record, in fashioning the resulting 

sentence. See, e.g., Navarro-Santisteban, 83 F.4th at 56

(remanding when it was not possible to "extricate the influence" 

of the court's erroneous reliance on tainted hearsay evidence "from 

the court's broader sentencing rationale"). We thus cannot 

conclude that the procedural error here did not affect the 

selection of the imposed sentence.9

9 Before we go, a quick word on the Bureau of Prisons' 500-

hour drug and alcohol treatment program, which was recommended by 

the court as part of Colón's sentence. The government suggests 

the court mentioned these past-drug-use facts so Colón could 

benefit from the 500-hour program. This doesn't track for the 
- 35 -

CONCLUSION

We vacate Colón's sentence and remand to the district 

court for resentencing consistent with this opinion. In light of 

this disposition, we leave untouched and intimate no view on 

Colón's other appellate challenges to his sentences. On remand, 

the parties may pursue the other issues raised in their briefs we 

need not reach today, to the extent those other issues remain 

relevant.

The Clerk of the District Court is directed to assign 

this case to a different judge on remand for prompt resentencing. 

See 28 U.S.C. § 2106; see also United States v. Muniz, 49 F.3d 36, 

41 (1st Cir. 1995) (remanding to a different judge where the 

original sentence was grounded on unsupported findings of fact); 

revocation sentence rationale. For one thing, the court mentioned 

the 500-hour treatment program much earlier in the sentencing --

for the new conduct, not as part of the revocation sentence 

rationale. For another, the court could've referred Colón to the 

500-hour program without stating he "constantly" used drugs during 

his supervision period -- or it could have been more clear that it 

was saying so for the purpose of anchoring the order for the 

treatment program (though again, this still doesn't square with 

characterizing Colón's prior use as "constant[]" use "through his 

supervision period"). What's more, the record bears out that the 

treatment program may have been ordered because the defense imbued 

its sentencing arguments with the importance of substance abuse

treatment (of note, defense counsel below suggested Colón might 

not qualify specifically for the 500-hour program because it 

requires a GED (which Colón does not have); and even then, we note 

there is no guarantee the Bureau of Prisons will be able to 

accommodate such a referral). 

All to say, this point does not move the analytical needle 

for us.
- 36 -

Mawson v. United States, 463 F.2d 29, 31 (1st Cir. 1972) ("It is 

difficult for a judge, having once made up his mind, to resentence 

a defendant, and both for the judge's sake, and the appearance of 

justice, we remand this case to be redrawn."). The district court 

will base resentencing on the existing factual record, 

supplemented if appropriate by evidence of events that occurred 

after the date of the most recent prior sentencing.