Not for Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.1.0

United States Court of Appeals

For the First Circuit

No. 05-2752

UNITED STATES OF AMERICA,

Appellee,

v.

DENSIL TREVOR CHAPMAN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before

 Selya, Circuit Judge,

Cyr and Stahl, Senior Circuit Judges.

Maria Soledad Ramirez-Becerra and Maria Soledad RamirezBecerra Law Office on brief for appellant.

Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson

Pérez-Sosa and Germán A. Rieckehoff, Assistant United States

Attorneys, on brief for appellee.

December 22, 2006
-2-

Per Curiam. A federal grand jury sitting in the District

of Puerto Rico indicted defendant-appellant Densil Trevor Chapman

on a single count charging that he, being an alien previously

deported from the United States subsequent to a conviction for an

aggravated felony, attempted to reenter without having obtained

express consent from the Attorney General. See 8 U.S.C. § 1326.

The defendant moved for relief from the indictment on the ground

that his original deportation was carried out in violation of his

due process rights. The district court, accepting the recommended

decision of a magistrate judge, denied the motion.

Subsequently, the defendant entered an unconditional

guilty plea to the single count of the indictment. The presentence

investigation report (PSI Report) suggested a guideline sentencing

range (GSR) of 70-87 months. The defendant did not object to this

calculation. 

At the disposition hearing, held on October 18, 2005, the

defendant argued that imposing a sentence within the GSR would be

harsher punishment than necessary. In this regard, he cited a

plethora of factors, such as his family history and background, his

prior military service, the relatively compressed span of his

previous criminal activity, his belief that he would be deported

upon his release from immurement (thereby blunting any need to

incarcerate him for a lengthy period), and the fact that he

presented no danger to society. After listening to the defendant's
-3-

importunings, the district court accepted the PSI Report's

guideline calculations and sentenced him to a 40-month

incarcerative term. This timely appeal followed.

We need not tarry. The Supreme Court's landmark decision

in United States v. Booker, 543 U.S. 220, 245 (2005), rendered the

federal sentencing guidelines advisory. Post-Booker, we review

sentences for reasonableness. Id. at 261. That standard of review

obtains whether the sentence imposed falls inside or outside the

GSR. See United States v. Turbides-Leonardo, ___ F.3d ___, ___

(1st Cir. 2006) [No. 05-2374, slip op. at 12-13]; United States v.

Jiménez-Beltre, 440 F.3d 514, 517 (1st Cir. 2006) (en banc).

"In constructing a sentence under an advisory guidelines

regime, a sentencing court ordinarily should begin by calculating

the applicable guideline sentencing range; then determine whether

or not any departures are in order; then mull the factors

delineated in 18 U.S.C. § 3553(a) as well as any other relevant

considerations; and, finally, determine what sentence, whether

within, above, or below the guideline sentencing range, appears

appropriate." United States v. Pelletier, ___ F.3d ___, ___ (1st

Cir. 2006) [No. 06-1287, slip op. at 20]. Here, the defendant

concedes the correctness of the calculated GSR (70-87 months). See

Appellant's Br. at 11. By like token, he advances no argument

anent the sentencing court's eschewal of a departure. He posits,

rather, that the sentencing court failed to attach appropriate
As the government has not cross-appealed, we need not 1

consider whether the sentence is unreasonably lenient.

-4-

weight either to the various mitigating factors enumerated above or

to irregularities in his original deportation proceeding. 

This argument is meritless. The transcript of the

disposition hearing makes manifest that the lower court considered

the factors limned in 18 U.S.C. § 3553(a), mulled the various

proffers made by the defendant in mitigation, and gave the

defendant a huge discount — sentencing him to a term of

imprisonment of 40 months. That sentence is roughly 43% below the

nadir of the applicable GSR. 

The sentencing transcript and the PSI Report make the

district court's rationale for the length of the sentence

abundantly clear. That rationale is "plausible." Jiménez-Beltre,

440 F.3d at 519. The resulting sentence is not unreasonably

harsh. No more is exigible. 1

There are two final points. First, the fact that the

sentencing court did not address the section 3553(a) factors one by

one in explicating its sentencing decision in no way undermines the

reasonableness of the sentence imposed. See United States v.

Dixon, 449 F.3d 194, 205 (1st Cir. 2006); United States v.

Scherrer, 444 F.3d 91, 94 (1st Cir. 2006) (en banc). 

Second, the defendant devotes much of his brief to the

thesis that the district court should have extended him even
We do not disparage the substance of this claim. Were it not 2

for the combination of three events — this waiver, the

unconditional guilty plea that preceded it, and the defendant's

failure to press an appeal of the original removal order to the

Board of Immigration Appeals — the result might well have been

different.

-5-

greater largesse because of the dubious constitutionality of his

earlier deportation proceeding. This contention is waived: the

transcript of the disposition hearing discloses that, instead of

asking the district court to consider his collateral attack on the

constitutionality of the original deportation proceeding, the

defendant told the court, through counsel, that he would not press

that argument but, rather, would "throw [himself] on the mercy of

the Court." That was a waiver, pure and simple. See United 2

States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002). Unlike a

forfeited issue (which can be reviewed on appeal for plain error),

a waived issue cannot be reviewed at all. See id. 

We need go no further. For the reasons elucidated above,

we uphold the sentence. Our ruling is without prejudice, of

course, to the defendant's right, if he so elects, to raise an

ineffective assistance of counsel claim under 28 U.S.C. § 2255.

Affirmed.