United States Court of Appeals 

For the First Circuit 

No. 18-1265 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

JOHN MICHAEL GARCÍA-MOJICA, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

[Hon. Gustavo A. Gelpí, Chief, U.S. District Judge] 

Before 

Howard, Chief Judge, 

 Torruella and Kayatta, Circuit Judges. 

Joseph A. Niskar, Assistant Federal Public Defender, with 

whom Franco L. Pérez-Redondo, Research & Writing Specialist, Eric 

Alexander Vos, Federal Public Defender, and Vivianne M. MarreroTorres, Assistant Federal Public Defender, Supervisor, Appeals 

Section, were on brief, for appellant. 

Antonio L. Pérez-Alonso, Assistant United States Attorney, 

Appellate Division, with whom Thomas F. Klumper, Assistant United 

States Attorney, Senior Appellate Counsel, W. Stephen Muldrow, 

United States Attorney, and Mariana E. Bauzá-Almonte, Assistant 

United States Attorney, Chief, Appellate Division, were on brief, 

for appellee. 

April 9, 2020 
-2- 

TORRUELLA, Circuit Judge. In this appeal, John Michael 

García-Mojica ("García") challenges a 100-month sentence of 

imprisonment imposed for the convictions of possession of a firearm 

by a prohibited person and illegal possession of a machine gun. 

During a traffic stop, García was caught with a Glock pistol 

modified to shoot automatically with its serial number removed, 

two high-capacity magazines, and forty-seven rounds of ammunition. 

He confessed immediately and entered a straight plea of guilty. 

A probation officer recommended a sentence of forty-one to 

fifty-one months for both offenses based on the U.S. Sentencing 

Guidelines. At sentencing, the prosecutor challenged the probation 

officer's Guidelines calculation and requested a sentence of at 

least sixty-three months' imprisonment; in the alternative, the 

Government requested an upward variance, arguing that the 

Guidelines did not contemplate the severity of García's former 

state-court convictions for which he received a twenty-three year 

suspended sentence. Defense counsel countered the prosecution's 

arguments and objected to the characterization of the underlying 

state-court convictions. After stating it was giving García the 

benefit of the doubt and disclaiming reliance on the events beyond 

what was contained in the state-law convictions, the district court 

adopted the Guidelines calculation and then imposed an upward 

variance of forty-nine months' imprisonment. This appeal followed. 
-3- 

Challenging his punitive sentence, García claims that the district 

court erred by failing to adequately justify its sentence, relying 

on unsubstantiated facts, and ultimately, arriving at a 

substantively unreasonable result. His overtures unavailing, the 

sentence is affirmed. 

A. 

On December 13, 2016, at 1:25 a.m., the police in Sábana 

Grande, Puerto Rico were alerted to a suspicious vehicle with a 

flat tire.1 The officers saw the vehicle with its hazard lights 

on and stopped parallel to it to ask if the occupants needed 

assistance. The driver stated he did not have a spare tire, and 

the officer, smelling marijuana, told the driver to pull over. 

Following the traffic stop, García, who was sitting in the 

backseat, exited the car, meanwhile dropping a thirty-round pistol 

magazine. The police arrested García and found a second magazine 

in his pocket. Additionally, the police recovered from García's 

waistband a model seventeen 9mm Glock pistol (loaded with a single 

round in the chamber) with an obliterated serial number. Later 

that day, García met with agents from the Bureau of Alcohol, 

 

1 The facts are derived from the change-of-plea colloquy, the 

undisputed sections of the presentence investigation report, and 

the sentencing hearing transcript. See United States v. 

Vázquez-Martínez, 812 F.3d 18, 20 (1st Cir. 2016) (citing United 

States v. Zapata–Vázquez, 778 F.3d 21, 22 (1st Cir. 2015)). 
-4- 

Tobacco, Firearms and Explosives, confirmed the police officer's 

account, and admitted that the seized firearm belonged to him, and 

that he had purchased the gun for $1,100 with the serial number 

removed and modified to shoot automatically. 

On December 21, 2016, García was charged in a two-count 

indictment for violation of 18 U.S.C. § 922(g)(1) (prohibited 

person in possession of a firearm) and 18 U.S.C. § 922(o) (illegal 

possession of a machine gun). Following discovery, the United 

States indicated that no plea offer would be tendered. García 

proceeded to enter a straight plea of guilty for both counts. A 

U.S. Probation Officer issued a presentence investigation report 

(PSR), which recommended an imprisonment term of forty-one to 

fifty-one months, based on a calculation of a total offense level 

of twenty-one and a criminal history category of II. The PSR 

recounted García's criminal history in Puerto Rico state court: 

four convictions for possession of a firearm without a license, a 

conviction for resisting public authority, and a conviction for 

conspiracy in violation of Puerto Rico Penal Code Article 249 of 

2004.2 The PSR described the last offense as "conspir[ing] to 

 

2 Article 249 reads: "[w]hen two (2) or more persons conspire or 

agree to commit a crime and have made specific plans regarding 

their participation, the time, the location, or the acts to be 

carried out, they shall be guilty of a misdemeanor. . . . If the 

agreement is to commit a first- or second-degree felony, they shall 

be guilty of a fourth-degree felony . . . ." P.R. Laws Ann. 
-5- 

commit murder, in the Food Court of San Patricio Plaza, at 

5:00 p.m. using a firearm described as a black Glock, model 23, 

.40 caliber, ma[king] several shots causing the death of the human 

being Emmanuel J. Zapata-Casso." The PSR did not identify any 

factors warranting a departure from the advisory guidelines or a 

variance pursuant to 18 U.S.C. § 3553(a). Subsequently, both 

prosecution and defense submitted sentencing memoranda, and 

following delays from Hurricane María, the court sentenced García 

on March 12, 2018. 

At the sentencing hearing, the United States objected to 

the PSR's Guidelines calculation, proposing a total offense level 

of twenty-three because García's prior conviction constituted a 

crime of violence and requesting a sentence of at least sixty-three 

months. Defense counsel did not object to the PSR when prompted 

by the court, but in response to the United States' objections to 

the Guidelines calculations, she requested a sentence within the 

PSR's proposed range. The United States then entreated the court 

to impose a variance, recounting the circumstances of García's 

state-court convictions3 and explaining several additional reasons 

 

tit. 33, § 4877. 

3 The prosecutor stated that in García's conspiracy-tocommit-murder case, García and another had shot several times at 

an individual in broad daylight at around 5:00 p.m. in the food 

court of San Patricio Plaza and killed that individual. 
-6- 

why the court should vary upwardly from the Guidelines. García's 

counsel objected to the Government's characterization of her 

client's conviction and posited that the Guidelines sentence 

accurately reflected García's criminal history. Asked why García 

was not "a candidate for an upward variance" considering "all these 

firearm violations," García's counsel explained that this was only 

"his second brush with the law" and asked the court to consider 

that the lenient sentence in state court could have been due to 

additional mitigating circumstances and lack of participation. 

She further explained that the current offense occurred during a 

routine traffic stop, and that García would be "exposed to the 

full 23 years of imprisonment [in state court] because of the 

present case." 

After adopting the Guidelines sentencing range set forth 

in the PSR, the court explicitly stated it would "not go beyond" 

what was in the state-court convictions. The court then announced 

a 100-month term of imprisonment as "sufficient but not greater 

than necessary." The court focused its explanation on the 

seriousness of the firearms offenses, the leniency of a 

twenty-three year suspended sentence, and the fact that García was 

under state supervision when the instant offense was committed. 

It cited United States v. Flores-Machicote, 706 F.3d 16 (1st Cir. 

2013), as evidence of the problem firearms pose in the District of 
-7- 

Puerto Rico. After the pronouncement of the sentence, defense 

counsel lodged an objection to the sentence's procedural 

reasonableness. 

This timely appeal followed. 

B. 

García challenges his sentence as both procedurally and 

substantively unreasonable. In reviewing his claims, we first 

determine whether the district court committed a "procedural 

error, such as 'failing to calculate (or improperly calculating) 

the Guidelines range, treating the Guidelines as mandatory, 

failing to consider the section 3553(a) factors, selecting a 

sentence based on clearly erroneous facts, or failing to adequately 

explain the chosen sentence—including an explanation for any 

deviation from the Guidelines range.'" United States v. 

Gierbolini-Rivera, 900 F.3d 7, 11–12 (1st Cir. 2018) (quoting 

United States v. Trinidad-Acosta, 773 F.3d 298, 309 (1st Cir. 

2014)).4 "[I]f the sentence is procedurally sound, we then ask 

whether the sentence is substantively reasonable." Id. at 12 

(alteration in original) (quoting United States v. Rossignol, 780 

 

4 The court is required to "impose a sentence [that is] sufficient, 

but not greater than necessary" to accomplish the goals of 

sentencing by taking into consideration the § 3553(a) factors 

after correctly calculating the Guidelines sentence range. See 

United States v. Rodríguez, 731 F.3d 20, 25-26 (1st Cir. 2013). 
-8- 

F.3d 475, 477 (1st Cir. 2015)). A sentence will be found 

"substantively reasonable so long as the sentencing court has 

provided a 'plausible sentencing rationale' and reached a 

'defensible result.'" Id. (quoting United States v. Martin, 

520 F.3d 87, 96 (1st Cir. 2008)). 

García attacks the procedural reasonableness of his 

sentence for two reasons: the district court "fail[ed] to 

[adequately] justify the extent of the variance" and "premised the 

extent of the variance on unsupported allegations." The 

Government avers that García's objection to the sentence's 

procedural reasonableness was too general to secure review of the 

sentence under the abuse of discretion standard that García seeks 

on appeal. See id. ("We generally apply the deferential abuse of 

discretion standard to preserved challenges to the procedural 

reasonableness of a sentence." (citing United States v. Del 

Valle-Rodríguez, 761 F.3d 171, 176 (1st Cir. 2014))). It is true 

that "[a] general objection to the procedural reasonableness of a 

sentence is not sufficient to preserve a specific challenge to any 

of the sentencing court's particularized findings," and claims 

first raised on appeal will be subject to the more formidable plain 

error standard of review.5 United States v. Matos-de-Jesús, 856 

 

5 "Under that formidable standard, the appellant must show 

'(1) that an error occurred (2) which was clear or obvious and 

which not only (3) affected [his] substantial rights, but also 
-9- 

F.3d 174, 177–78 (1st Cir. 2017) (quoting United States v. 

Soto-Soto, 855 F.3d 445, 448 n.1 (1st Cir. 2017)). García responds 

that the current arguments were "at the forefront of the sentencing 

hearing and the primary point of contention between the parties." 

However, even assuming the more favorable standard of review, 

García's contentions would still fail. See United States v. 

Caballero-Vázquez, 896 F.3d 115, 120 (1st Cir. 2018). 

García first argues that the district court failed to 

adequately articulate a basis for departing so significantly from 

the Guidelines range of forty-one to fifty-one months' 

imprisonment to impose a 100-month sentence. Given such a drastic 

variance, he contends, the court was obligated to offer an 

explanation commensurate to the extent of additional time. García 

puzzles over how the court could eschew reliance on the 

Government's representations of the 2011 Puerto Rico court 

convictions by giving García "every conceivable benefit of the 

doubt" and yet still impose such a punitive sentence. García 

insists that because the Guidelines accounted for the aggravated 

nature of the weapon during the pendency of a suspended sentence, 

 

(4) seriously impaired the fairness, integrity, or public 

reputation of judicial proceedings.'" United States v. 

Matos-de-Jesús, 856 F.3d 174, 178 (1st Cir. 2017) (alteration in 

original) (quoting United States v. Duarte, 246 F.3d 56, 60 (1st 

Cir. 2001)). 
-10- 

in addition to his criminal history, the court's departure from 

the Guidelines required it to "articulate specifically the reasons 

that this particular defendant's situation is different from the 

ordinary situation covered by the [G]uidelines calculation." 

United States v. Vázquez-Martínez, 812 F.3d 18, 24 (1st Cir. 2016) 

(quoting United States v. Zapete–García, 447 F.3d 57, 60 (1st Cir. 

2006)). 

While we agree with García that a "sentencing court's 

burden to explain its sentence increases the more that it deviates 

from the guideline range," Matos-de-Jesús, 856 F.3d at 179, the 

court here did just that. Reviewing the sentencing transcript, 

the court's explanation of its reasoning is thorough. While the 

court was certainly troubled by the circumstances already factored 

into the Guidelines calculation, it expressed additional concerns, 

including that García had not learned from his lenient state-court 

sentence for his prior weapons offenses6 and had committed the 

instant offense only five years into his twenty-three year 

suspended sentence. The court also noted that García was carrying 

 

6 García contests whether the twenty-three year suspended state 

sentence was actually lenient. While defense counsel was free to 

argue that García's twenty-three year suspended sentence was the 

result of mitigating factors related to his level of participation 

in the underlying offense, the court was within its discretion to 

find those arguments unpersuasive and to determine that García's 

recent convictions evidenced that he had not learned from his 

"Herculean break" in state court. 
-11- 

extra ammunition, which contributed to the lethalness of the 

automatic weapon.7 Additionally, the court cited the problem of 

illegal weapons in Puerto Rico as pertinent to the seriousness of 

the present offense, nodding to Flores-Machicote, 706 F.3d at 

22-23. See also United States v. Santos–Rivera, 655 F. App'x 5, 

7 (1st Cir. 2016) ("[T]he incidence of particular crimes in the 

relevant community appropriately informs and contextualizes the 

need for deterrence." (alteration in original) (quoting United 

States v. Narváez-Soto, 773 F.3d 282, 286 (1st Cir. 2014))). The 

sentencing court's articulation of these concerns regarding 

García's prior lenient treatment and pattern of serious weapons 

offenses in his particular community can be considered as falling 

outside the factors explicitly considered by the Guidelines, 

warranting additional deterrence and resulting in additional time. 

García's second argument -- that the district court's 

variance can only be explained by its reliance on unsupported 

allegations -- is intertwined with his first. According to García, 

because the court failed to explain why he was distinguishable 

from other similarly situated defendants and did not articulate a 

compelling reason for almost doubling the recommended sentence, 

the court must have relied on the prosecution's characterization 

 

7 The Guidelines do not take into consideration the extra 

ammunition García was carrying when apprehended. 
-12- 

of his underlying state law conviction. García contends that 

consideration of these facts not in evidence essentially 

prejudiced the district court against him, overriding any 

mitigating factors offered by the defense. 

This argument, however, fails simply due to the fact 

that the state-court convictions were properly before the court. 

The PSR (to which García did not object) stated that García was 

convicted for conspiring to commit murder leading to a death, and 

his own sentencing memorandum read that García had "conspired in 

the murder of a third person." While the prosecution implored the 

sentencing court to read more into the "asymmetry between 

Mr. García's [state court] punishment and his alleged conduct," it 

was within the court's discretion to take the convictions described 

in the PSR at face value when determining the appropriate sentence 

in light of the § 3553(a) factors. United States v. AcevedoLópez, 873 F.3d 330, 340 (1st Cir. 2017) ("[Defendant] did not 

object to the summaries of these two incidents in the PSR, so the 

district court could treat those facts 'as true for sentencing 

purposes.'" (quoting United States v. Ocasio-Cancel, 727 F.3d 85, 

91-92 (1st Cir. 2013))). Additionally, the sentencing judge 

expressly disavowed any reliance on facts beyond the convictions 

when it thoroughly articulated the aforementioned reasons for the 

variance. Because the court sufficiently explained the sentence 
-13- 

while relying on the facts properly before it, García's claims of 

procedural error fail. 

Lastly, García incorporates his prior arguments of 

procedural error to challenge the sentence's substantive 

reasonableness (i.e., length), acknowledging that only a 

"plausible explanation" of the sentence is required. See United 

States v. Clogston, 662 F.3d 588, 593 (1st Cir. 2011). At 

sentencing, García "advocate[d] for a sentence shorter than the 

one ultimately imposed." Holguin-Hernández v. United States, 140 

S. Ct. 762, 766 (2020). Therefore, we review his objections to 

the sentence's substantive reasonableness for an abuse of 

discretion. Id. 

With respect to substance, "[s]entencing is much more an 

art than a science. A sentencing court is under a mandate to 

consider a myriad of relevant factors, but the weighting of those 

factors is largely within the court's informed discretion." 

Clogston, 662 F.3d at 593. "Although an appellate court must take 

into account the full extent of any variance, the dispositive 

question remains whether the sentence is reasonable in light of 

the totality of the circumstances." Vázquez-Martínez, 812 F.3d 

at 26 (quoting United States v. Santiago–Rivera, 744 F.3d 229, 234 

(1st Cir. 2014)). The sentencing court here stated that it was 

considering both aggravating and mitigating factors, the latter 
-14- 

including acceptance of responsibility, physical and emotional 

conditions, and substance abuse, although in the end, it chose 

"not to attach to certain of the mitigating factors the 

significance that the appellant th[ought] they deserved." 

Clogston, 662 F.3d at 593. Instead, the court found that García's 

personal circumstances and the seriousness of his repeat firearm 

offenses warranted an above-Guidelines sentence. That is not an 

abuse of discretion. 

García also laments that the district court neglected to 

consider "the aggregate length of his federal and state sentence 

as part of its duty to consider the § 3553(a) factors." Upon 

review, it appears instead that the district court considered this 

and the possibility that García could be liable for the imposition 

of the entire twenty-three year state sentence and still found the 

aggravating factors outweighed the mitigating factors. As the 

sentence is within the "universe of reasonable sentencing 

outcomes," United States v. Vargas-García, 794 F.3d 162, 167 (1st 

Cir. 2015) (quoting Clogston, 662 F.3d at 592), we cannot find it 

substantively unreasonable.

Affirmed.