Not For Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 05-2191

UNITED STATES OF AMERICA,

Appellee,

v.

JACOBO VÁZQUEZ-MIESES,

Defendant, Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

DISTRICT OF PUERTO RICO

[Hon. Jose Antonio Fusté, U.S. District Judge]

Before

Torruella, Selya, and Howard, Circuit Judges.

Daniel Klubock, Feinberg and Kamholtz, on brief for defendant,

appellant.

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

Nelson Pérez-Sosa, Assistant United States Attorney, Chief,

Appellate Division, and Rosa Emilia Rodríguez-Vélez, United States

Attorney, on brief for appellee.

September 27, 2006
That range, which was not disputed in the district court and 1

is not challenged on appeal, was computed as follows: a total

offense level of 21 (base offense level of 8, U.S.S.G. § 2L1.2(a)

(Nov. 2004 ed.), plus 16 levels because the sentence for one of his

prior felony drug trafficking convictions exceeded 13 months, id.

§ 2L1.2(b)(1)(A), minus 3 levels for acceptance of responsibility,

id. § 3A1.1(a)) combined with a criminal history category of III (6

criminal history points for two prior sentences of imprisonment

exceeding one year and one month, id. § 4A1.1(a)) yielded a range

of 46 to 57 months' imprisonment, id. ch. 5, pt. A (Sentencing

Table). 

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Per Curiam. Jacobo Vázquez-Mieses ("Vázquez"), an alien

who was previously deported following a drug trafficking

conviction, pled guilty to reentering the United States without the

requisite permission and was sentenced to 46 months' imprisonment

(the bottom of the applicable guideline range) and three years' 1

supervised release. On appeal, Vázquez does not dispute the

accuracy of the guideline calculations or argue that his sentence

is substantively unreasonable under United States v. Booker, 543

U.S. 220, 261 (2005). Rather, his arguments are more procedural in

nature. For the reasons discussed below, we find those arguments

unpersuasive. 

His first contention--that the district court violated 18

U.S.C. § 3553(c) by failing to state the reasons for the sentence

in open court--is easily dispatched. Where, as here, the sentence

imposed is within the guideline range, the correctness of that

range is undisputed, and the breadth of the range is less than 24

months, section 3553(c) does not require "[a] district court . .

. to cite any reason for sentencing a defendant within [that
As detailed in the presentence report, that record included 2

repeated drug trafficking offenses, some of which were only

slightly too old to be counted in calculating his criminal history

score. The only gaps in that history occurred when he was

incarcerated or deported following two previous illegal entries. 

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range]." United States v. Mansur-Ramos, 348 F.3d 29, 31 (1st Cir.

2003); see also United States v. O'Connell, 252 F.3d 524, 529 (1st

Cir. 2001). 

Although reasonableness review, post-Booker, does make it

"important for [the reviewing court] to have the district court's

reasons for its sentence" even if the sentence is within a narrow

guideline range, United States v. Jiménez-Beltre, 440 F.3d 514, 519

(1st Cir. 2006) (en banc), "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," id. Here,

the reasons for the sentence are readily apparent from the

sentencing transcript as supplemented by the presentence report. 

At sentencing, the court responded to the mitigating

circumstances proffered by the defendant--that he was addicted to

drugs when he committed his prior offenses but had been drug-free

in recent years and that the instant offense was motivated by a

desire to improve his financial situation--by reminding him of his

extensive criminal record. The court again referred to that

record, "without giving the specific details," before announcing 2

his sentence. Despite that record, the court adopted both parties'

recommendations to sentence Vázquez to the bottom of the guideline
In some districts, where authorized by the Attorney General, 3

Congress has authorized downward departures for illegal reentry

defendants who waive certain procedural rights. Jiménez-Beltre,

440 F.3d at 519 n.3. Puerto Rico is not among those districts.

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range. In exercising such leniency, the court was presumably

influenced by defense counsel's argument that a sentence at the

lower end of the guideline range "would provide adequate punishment

for the offense committed," Vázquez's own explanation of the

circumstances of his instant and prior offenses, and the

government's statement that Vázquez had been "very, very

cooperative" in quickly accepting responsibility and expressing

remorse for his offense. No further explanation was required. 

Although Vázquez now proffers an additional ground for

leniency--that the reduced sentence he would have received had he

been sentenced in a "fast-track" district would have been 3

"sufficient" to serve the purposes of sentencing under 18 U.S.C. §

3553(a)--the district court was not required to address that or any

other potential ground for leniency that was not brought to its

attention. United States v. Alli, 444 F.3d 34, 41 (1st Cir. 2006).

Moreover, it is questionable whether such an argument would

constitute a valid reason for leniency in any event, United States

v. Martínez-Flores, 428 F.3d 22, 30 n.3 (1st Cir. 2005), cert.

denied, 126 S. Ct. 1449 (2006), particularly without a factual

basis, Jiménez-Beltre, 440 F.3d at 519.
In fact, although probation is not recommended by the 4

guidelines, U.S.S.G. ch. 5, pt. A; § 5B1.1, probation is allowed by

statute for this Class C felony offense, 18 U.S.C. §§ 3559(a)(3),

3561; and the maximum term of supervised release recommended by the

guidelines is three years, id. § 5D1.2(a)(2).

 

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Vázquez's final grounds for resentencing are premised on

two erroneous statements made by the district court at his change

of plea hearing--that probation is not available in this type of

case, and that the maximum term of supervised release for this

offense is two years. Because neither of those grounds was raised 4

below, our review is only for plain error. United States v.

Vazquez-Molina, 389 F.3d 54, 57-58 (1st Cir. 2004), vacated on

other grounds, 544 U.S. 946 (2005). Under that appellantunfriendly standard, "an appellant must demonstrate: '(1) that an

error occurred (2) which was clear or obvious and which not only

(3) affected the defendant's substantial rights, but also (4)

seriously impaired the fairness, integrity, or public reputation of

judicial proceedings.'" Id. (quoting United States v. Duarte, 246

F.3d 56, 60 (1st Cir. 2001)).

Even assuming that these misstatements satisfy the first

two prongs of the plain error standard, Vázquez cannot show the

prejudice necessary to satisfy the remaining two prongs. He does

not claim that he would not have pled guilty had those

misstatements not been made at that stage. By the time of

sentencing, those mistakes had been corrected in the presentence
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report, which Vázquez had reviewed without objection and which the

court relied upon in sentencing. Given the court's expressed

concern about the seriousness of Vázquez's criminal record and the

guidelines' suggestion of a sentence of up to almost six years, any

suggestion that the court could have been persuaded to impose a

probationary sentence, instead of the 46-month prison sentence

actually imposed, is fanciful. The fact that the court ultimately

imposed a three-year, rather than a two-year, term of supervised

release is also inconsequential, given that Vázquez will likely be

deported long before the additional year begins.

Accordingly, the sentence is affirmed. See 1st Cir. R.

27(c).