United States Court of Appeals 

For the First Circuit 

No. 17-1763 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

ELVIN ANTONIO RIVERA-SANTIAGO, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

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

Before 

Lynch, Selya, and Lipez, 

Circuit Judges. 

Kendys Pimentel-Soto and Kendys Pimentel-Soto Law Office on 

brief for appellant. 

 Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana 

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

Appellate Division, and B. Kathryn Debrason, Assistant United 

States Attorney, on brief for appellee. 

March 22, 2019 
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LIPEZ, Circuit Judge. Claiming procedural 

unreasonableness, Elvin Antonio Rivera-Santiago appeals his 

48-month sentence for unlawfully possessing a firearm. He contends 

that the district court failed to adequately explain its reasons 

for imposing an above-guideline sentence, that a variant sentence 

was not supported by the record, and that the district court 

"relied on erroneous facts." After careful review, we affirm. 

I. 

 Given that this appeal follows a guilty plea, "we draw 

the relevant facts from the plea agreement, the change-of-plea 

colloquy, the undisputed portions of the presentence investigation 

report ("PSR"), and the transcript of the disposition hearing." 

United States v. O'Brien, 870 F.3d 11, 14 (1st Cir. 2017). 

Rivera-Santiago was charged with being a felon in possession of a 

firearm after police officers found firearms, magazines, and 

ammunition at the home he shared with his partner and his 

seven-year-old daughter, which the officers searched pursuant to 

a search warrant, and in his vehicle, which they obtained his 

consent to search. Specifically, the officers found: two empty, 

large-capacity .40-caliber magazines for a Glock pistol and fortytwo rounds of .40-caliber ammunition in the bedroom closet; a Glock 

pistol loaded with twenty-one rounds of .40-caliber ammunition on 

the driver's seat of Rivera-Santiago's vehicle; another Glock 

pistol loaded with forty-eight rounds of .40-caliber ammunition 
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underneath the driver's seat; and three Glock .40-caliber 

magazines, containing a total of sixteen rounds of ammunition, in 

the driver's-side door pocket. The officers also found a "chip" 

used to convert semi-automatic Glocks into fully automatic 

firearms on top of a gun cleaning kit on the kitchen counter. 

Rivera-Santiago admitted to possessing all the firearms, 

magazines, and ammunition. He had previously been convicted of 

illegal possession of a firearm as a prohibited person and was 

serving a 36-month term of federal supervised release for the prior 

conviction at the time of his arrest. 

Pursuant to the plea agreement, Rivera-Santiago pleaded 

guilty to count one of a two-count indictment, illegal possession 

of a firearm by a convicted felon, in violation of 18 U.S.C. 

§§ 922(g)(1) and 924(a)(2).1 The parties agreed to recommend 

sentences within the applicable guideline range, with 

Rivera-Santiago permitted to "request a sentence at the lower end 

of the applicable guideline range while the United States may 

request a sentence at the upper end." 

 The PSR calculated Rivera-Santiago's total offense level 

at 17 and his criminal history category at III, for a guideline 

 1 As part of the plea agreement, the government moved at 

sentencing to dismiss count two, which charged him with illegal 

possession of a machine gun, 18 U.S.C. §§ 922(o) and 924(a)(2), 

based on his possession of the "chip." The district court granted 

the motion. 
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range of 30 to 37 months. The calculation took into account 

Rivera-Santiago's prior conviction for possession of a stolen 

semi-automatic firearm with an extended magazine and additional 

loaded magazines, and his commission of the current offense while 

on supervised release. Neither side objected to the PSR. 

 At the sentencing hearing, defense counsel requested a 

low-end guideline sentence of 30 months while the government 

requested an upper-end guideline sentence of 37 months. Defense 

counsel highlighted, inter alia, Rivera-Santiago's difficult 

upbringing and the fact that he faced a sentence of incarceration 

in the pending revocation matter. The government noted that (1) 

the offense involved two weapons and several extended magazines; 

(2) the conduct was essentially the same as that underlying RiveraSantiago's prior conviction; (3) he committed the present offense 

while less than a year out of prison and still on supervised 

release; and (4) he had committed several rules violations while 

incarcerated awaiting sentencing. As noted in the PSR, RiveraSantiago's incarceration infractions included circulating money 

illegally inside the prison, "refusing to obey an order," and 

"being insolent [to] staff." The government argued that his 

behavior, in general, exhibited a "serious disrespect for the law 

and authority." 

The district court agreed with the guideline range 

specified by the PSR, i.e., 30 to 37 months. The court then 
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addressed the sentencing factors prescribed by 18 U.S.C. § 3553(a). 

It noted Rivera-Santiago's personal characteristics, including his 

parenthood, and pointed out that he had committed the present 

offense while on supervised release for his prior conviction. The 

court also catalogued the two semi-automatic weapons, multiple 

extended magazines, and multiple rounds of ammunition that were in 

his possession. After stating that it had considered the § 3553(a) 

factors, "the serious nature of the offense of conviction, the 

type of weapon and the [amount] of ammunition involved, [and] the 

defendant's criminal history," the court imposed a 48-month 

variant sentence. Defense counsel immediately "object[ed] to the 

varian[t] sentence as procedurally unreasonable," without further 

elaboration. In response, the court replied, "I believe the 

circumstances of this defendant fully justifies the [c]ourt's 

sentence. He's putting at risk his own safety and that of the 

community. He's not protecting himself, his child or the 

community. It's a very serious offense and circumstances that he 

was involved with." This timely appeal followed.2

 2 The government properly concedes that the appeal waiver in 

the plea agreement does not apply. See United States v. 

Montalvo-Cruz, 745 F.3d 583, 584 n.1 (1st Cir. 2014) ("Because the 

district court did not follow [the parties' sentencing] 

recommendation, the waiver of appeal does not apply."). The 

government also generally acknowledges that the district court 

imposed an above-guideline sentence despite the government's 

occasional, erroneous references in its appellate brief to a "midrange" or a "lower-end, within-guidelines sentence." 
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II. 

 Rivera-Santiago contends that the 48-month sentence 

imposed by the district court is procedurally unreasonable because 

(1) the court failed to adequately explain its variant sentence, 

which he claims was not supported by the record; and (2) the court 

"relied on erroneous facts."3 The parties dispute whether he 

adequately preserved his objections and thus disagree as to the 

standards of review. Because we would affirm the sentence 

regardless of the standard, we assume, favorably to RiveraSantiago, that he preserved his objections. We therefore review 

the district court's imposition of a variant sentence for abuse of 

discretion and its factfinding for clear error. See United States 

v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir. 2015). 

A. Justification for Variant Sentence 

 Rivera-Santiago argues that his sentence is procedurally 

unreasonable because there is no basis for distinguishing his case 

from the "run-of-the-mill" felon-in-possession case contemplated 

by the guideline sentencing range, and because "[n]o particular 

circumstance was pointed out by the district court to adequately 

 3 To the extent Rivera-Santiago intended to bring a 

substantive unreasonableness claim, he has waived such a claim by 

failing to develop it beyond a few passing references in his brief. 

See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). Such 

a claim is, in any event, unavailing because the district court 

offered a plausible rationale for the sentence and arrived at a 

defensible result, as further explained below. See United States 

v. Mangual-Rosado, 907 F.3d 107, 111 (1st Cir. 2018). 
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support a varian[t] sentence." 

It is well established that a district court may vary 

above or below a guideline range so long as it "offer[s] a 

'plausible and coherent rationale' for its variance." United 

States v. Alejandro-Rosado, 878 F.3d 435, 439 (1st Cir. 2017) 

(quoting United States v. Guzman-Fernandez, 824 F.3d 173, 178 (1st 

Cir. 2016)). When a § 3553(a) consideration is already accounted 

for in the guideline range, a sentencing court "must articulate 

specifically the reasons that this particular defendant's 

situation is different from the ordinary situation covered by the 

guidelines calculation." Guzman-Fernandez, 824 F.3d at 177 

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

2006)). 

 Here, the district court offered "a plausible and 

coherent rationale" for its eleven-month variance. See 

Alejandro-Rosado, 878 F.3d at 440. The court highlighted that 

Rivera-Santiago had committed the offense while on supervised 

release for essentially the same offense, and that he possessed 

two semi-automatic weapons and a stash of large-capacity magazines 

and ammunition in his family home and in his vehicle. The 

sentencing range calculated by the district court would apply to 

a defendant who possessed a single firearm, see U.S.S.G. § 

2K2.1(a)(4)(B), who had been convicted of any crime punishable by 

imprisonment for a term exceeding one year, see id. § 2K2.1 cmt. 
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3 (citing 18 U.S.C. § 922(g)), and who had committed the present 

offense while on supervised release for any prior offense, see id. 

§ 4A1.1(d). Thus, the district court noted precisely those factors 

that differentiate Rivera-Santiago's offense from the 

"run-of-the-mill" felon-in-possession offense contemplated by the 

guidelines. 

B. Reliance on Erroneous Facts 

Rivera-Santiago also contends that the district court's 

comments after defense counsel objected to the sentence 

demonstrate that the court relied on erroneous facts, namely (1) 

that Rivera-Santiago had put the safety of his family and the 

community at risk, and (2) that his offense was "very serious." 

We disagree. 

The district court's comments invoked only undisputed 

facts supported by the record. It is a foundational principle of 

the felon-in-possession statute that a felon's unlawful possession 

of firearms presents a danger to society. See United States v. 

Doe, 960 F.2d 221, 225 (1st Cir. 1992) ("[L]egislators, when 

enacting the felon-in-possession statute, repeatedly referred to 

the danger that a gun, in the hands of a previously convicted 

felon, poses for the public."). Further, Rivera-Santiago's 

possession of multiple semi-automatic weapons, large-capacity 

magazines, and ammunition unsecured and accessible in his vehicle 

and in the home he shared with his partner and minor daughter 
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presented a danger to his family and society above and beyond a 

generic felon-in-possession case. It was also reasonable for the 

court to conclude that the offense was "very serious" given that 

Rivera-Santiago's possession of semi-automatic firearms while 

still on supervised release for unlawfully possessing a semiautomatic weapon demonstrated a lack of respect for the law and 

the absence of rehabilitation. For these reasons, the court did 

not rely on erroneous facts in imposing Rivera-Santiago's 

sentence.

III. 

 Concluding for the foregoing reasons that 

Rivera-Santiago's 48-month variant sentence was not procedurally 

unreasonable, we affirm. 

 So ordered.