United States Court of Appeals 

For the First Circuit 

No. 14-1444 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

MELVIN HERNÁNDEZ-MALDONADO, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

[Hon. Juan M. Pérez-Giménez, U.S. District Judge] 

Before 

Torruella, Lynch, and Lipez, 

Circuit Judges. 

Charles Allan Hope and Cunha & Holcomb, P.C., on brief for 

appellant. 

Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson 

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

Division, and Tiffany V. Monrose, Assistant United States 

Attorney, on brief for appellee. 

July 17, 2015 
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LYNCH, Circuit Judge. Melvin Hernández-Maldonado pled 

guilty in October 2013 to being a prohibited person in possession 

of a firearm, in violation of 18 U.S.C. § 922(g)(1), and was 

sentenced to 115 months imprisonment.

He now seeks to vacate his plea because the district 

court did not warn him that he could not withdraw his plea if the 

court did not follow the parties' sentencing recommendations, as 

required by Federal Rule of Criminal Procedure 11(c)(3)(B), though 

the plea agreement did contain this warning. Under the plea 

agreement, the government agreed to recommend 92 months 

imprisonment, and Hernández-Maldonado agreed to request 60 months. 

The plea agreement specified the sentencing guideline range was 

between 92 and 115 months, with a maximum penalty of 120 months. 

Hernández-Maldonado also challenges his 115 month sentence as 

unreasonable.

We affirm Hernández-Maldonado's conviction and sentence. 

Hernández-Maldonado has failed to demonstrate a reasonable 

probability that, but for the district court's failure to advise 

him that he could not withdraw his plea if it did not follow the 

government's recommendation, he would not have entered the plea. 

Furthermore, the sentence the district court imposed was 

procedurally and substantively reasonable. 
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I. 

 We confine our discussion of the facts to those necessary 

to frame the issues on appeal. The relevant facts are not in 

dispute. On March 23, 2012, a woman told two Puerto Rico Police 

Department agents that a man was being robbed and pointed to him. 

The agents observed three individuals in a 2001 Ford Explorer SUV 

wearing masks. When the individuals in the SUV saw the agents, 

they left the scene, first in the SUV and then on foot. The agents 

pursued the individuals and saw the driver was carrying a firearm. 

One agent saw the driver toss the firearm and then remove his mask 

and shirt as he ran. The agent recovered the firearm -- a pistol 

with an attached "chip," which allowed the pistol to fire 

automatically. The driver was later identified as HernándezMaldonado. The investigation revealed that the SUV was stolen and 

that Hernández-Maldonado had previously been convicted on two 

occasions of crimes punishable by more than one year imprisonment. 

One of these convictions was for murder. Hernández-Maldonado was 

on probation for that crime when he was arrested. 

II. 

 Hernández-Maldonado, through different counsel, seeks to 

vacate his guilty plea because the district court failed to meet 

the requirement of Federal Rule of Criminal Procedure 11(c)(3)(B) 

that, "[t]o the extent the plea agreement is of the type specified 

in Rule 11(c)(1)(B), the court must advise the defendant that the 
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defendant has no right to withdraw the plea if the court does not 

follow the recommendation or request." Because there was no 

objection, the district court's failure to give the required 

warning is reviewed for plain error. See United States v. 

Dominguez Benitez, 542 U.S. 74, 76 (2004); United States v. 

Borrero-Acevedo, 533 F.3d 11, 15 (1st Cir. 2008) (citing United 

States v. Vonn, 535 U.S. 55, 58-59 (2002)). Hernández-Maldonado 

must prove "(1) an error, (2) that is clear or obvious, (3) which 

affects his substantial rights . . . and which (4) seriously 

impugns the fairness, integrity, or public reputation of the 

proceeding." United States v. Correa-Osorio, 784 F.3d 11, 18 (1st 

Cir. 2015). 

 Because it is clear that the defendant has established 

the first two prongs, this case turns on the third prong of the 

plain error test, effect on substantial rights. See BorreroAcevedo, 533 F.3d at 17. To meet the third prong of the plain 

error test, "a defendant who seeks reversal of his conviction after 

a guilty plea, on the ground that the district court committed 

plain error under Rule 11, must show a reasonable probability that, 

but for the error, he would not have entered the plea." Dominguez 

Benitez, 542 U.S. at 83. Hernández-Maldonado has failed to make 

this showing. 

 We look to the full record. Id. at 80 (citing Vonn, 535 

U.S. at 74-75). Relevant factors include, inter alia, the 
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defendant's statements at the colloquy, "the overall strength of 

the Government's case and any possible defenses that appear from 

the record," and the inclusion of the warning in the plea 

agreement. See id. at 84-85. 

 Hernández-Maldonado signed a plea agreement, which 

itself contained the required warning. He stated that he had time 

to consult with his attorney and was satisfied with the attorney's 

services. Further, he acknowledged that under the plea agreement, 

he surrendered the right to appeal if the court sentenced pursuant 

to the recommendation -- suggesting Hernández-Maldonado understood 

he could appeal if the court did not sentence according the 

recommendation. 

 Whether or not Hernández-Maldonado subjectively believed 

he had a strong case, the question is whether he has met his burden 

of showing a reasonable probability that he would not have pled 

guilty if the missing warning had been administered. See id. at 

83. Hernández-Maldonado has not come close to meeting that burden. 

He is no neophyte to the criminal justice system. He voluntarily 

entered into a plea agreement and received the benefit of a 92-

month sentence recommendation from the government, below the 

maximum penalty. This "plea agreement . . . specifically warned 

that he could not withdraw his plea if the court refused to accept 

the Government's recommendations. This fact, uncontested by 
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[Hernández-Maldonado], tends to show that the Rule 11 error made 

no difference to the outcome here." Id. at 85. 

III. 

 Hernández-Maldonado also argues that the district 

court's 115-month sentence, at the top of the guideline 

recommendation and five months below the 120 month maximum, was 

unreasonable. He contends that his "history and characteristics," 

including his completion of high school and steady employment 

despite a troubled childhood, dictated a lower sentence. 

Hernández-Maldonado acknowledges that he did not object to the 

sentence at sentencing and concedes that his sentence is reviewed 

for plain error. See United States v. Ruiz-Huertas, ___ F.3d ___, 

2015 WL 4086319, at *2 (1st Cir. July 7, 2015). We recognize that 

other circuits have not required a defendant to object at 

sentencing to preserve a substantive reasonableness challenge. 

Id. at *4 (collecting cases). "This court, however, has held . . . 

that a failure to interpose an objection in the district court to 

the substantive reasonableness of a sentence begets plain error 

review." Id. (avoiding the question and assuming the abuse of 

discretion standard applies);1 see also United States v. Murphy-

 1 We note that Hernández-Maldonado waived any challenge to 

the standard of review by acknowledging in his brief that plain 

error review applies. See Correa-Osorio, 784 F.3d at 21 (citing 

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

if we assume that the abuse of discretion standard applies, 

Hernández-Maldonado's challenge still fails. Cf. Ruiz-Huertas, 
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Cordero, 715 F.3d 398, 402 (1st Cir. 2013) ("We discern no error, 

plain or otherwise."). 

 We review sentences for procedural and substantive 

reasonableness. Ruiz-Huertas, 2015 WL 4086319, at *1. The 

district court's sentence was neither procedurally nor 

substantively unreasonable. 

 To the extent Hernández-Maldonado challenges the 

procedural reasonableness of his sentence, that claim fails. Cf. 

United States v. Crespo-Ríos, 787 F.3d 34, 37 n.3 (1st Cir. 2015) 

("The lack of an adequate explanation can be characterized as 

either a procedural error or a challenge to the substantive 

reasonableness of the sentence."). Procedural reasonableness 

includes "that the district court committed no significant 

procedural error, such as failing to calculate (or improperly 

calculating) the Guidelines range, treating the Guidelines as 

mandatory, failing to consider the § 3553(a) factors, selecting a 

sentence based on clearly erroneous facts, or failing to adequately 

explain the chosen sentence." United States v. Martin, 520 F.3d 

87, 92 (1st Cir. 2008) (quoting Gall v. United States, 552 U.S. 

38, 51 (2007)) (internal quotation marks omitted). The district 

court did not improperly calculate the guidelines range, fail to 

 

2015 WL 4086319, at *4.
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consider the § 3553(a) factors, or commit any other procedural 

error. 

 Hernández-Maldonado's sentence was also substantively 

reasonable. "[T]here is almost always a range of reasonable 

sentences for any given offense. . . . [T]he linchpin of a 

reasonable sentence is a plausible sentencing rationale and a 

defensible result." United States v. Santiago-Rivera, 744 F.3d 

229, 234 (1st Cir. 2014) (internal citations and quotation marks 

omitted). Furthermore, reversals in substantive reasonableness 

challenges are "particularly unlikely when . . . the sentence 

imposed fits within the compass of a properly calculated 

[guidelines sentencing range]." Ruiz-Huertas, 2015 WL 4086319, at 

*4 (alterations in original) (quoting United States v. VegaSalgado, 769 F.3d 100, 105 (1st Cir. 2014)) (internal quotation 

marks omitted). 

 Hernández-Maldonado has prior convictions, including one 

for murder. When he was on probation,2 he was in a stolen vehicle, 

in a mask, in possession of a machine gun. In an attempt to evade 

the Puerto Rico Police Department, he ran across a highway, 

creating danger not only to the police but those on the road. The 

district court explicitly stated that it reviewed the guideline 

calculations and considered Hernández-Maldonado's education level, 

 2 The government apparently misspoke at sentencing when it 

said that Hernández-Maldonado was on parole. 
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lack of substance abuse, and the absence of a history of mental or 

emotional health problems. "While a sentencing court must consider 

all of the applicable [18 U.S.C. §] 3553(a) factors, it is not 

required to address those factors, one by one, in some sort of 

rote incantation when explicating its sentencing decision." 

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

also Ruiz-Huertas, 2015 WL 4086319, at *2. We find the district 

court committed no error and its sentence was reasonable. 

IV. 

 For the reasons set forth above, we affirm HernándezMaldonado's conviction and sentence.