Not For Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

No. 13-2396

UNITED STATES OF AMERICA,

Appellee,

v.

ROLANDO TORRES-NEVÁREZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

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

Before

Howard, Chief Judge,

Torruella and Selya, Circuit Judges.

Francisco J. Adams-Quesada, on brief for appellant.

Tiffany V. Monrose, Assistant United States Attorney, Rosa

Emilia Rodríguez-Vélez, United States Attorney, and Nelson PérezSosa, Assistant United States Attorney, Chief, Appellate Division, 

on brief for appellee.

September 11, 2015
TORRUELLA, Circuit Judge. Defendant-Appellant Rolando

Torres-Nevárez ("Torres") contends that the district court erred

when it sentenced him to the higher end of the applicable

sentencing guidelines range. Torres pleaded guilty to possessing

a firearm in furtherance of drug trafficking in violation of 18

U.S.C. § 924(c)(1)(A) ("Count Three") and to a drug offense in

violation of 21 U.S.C. § 841(a)(1),(b)(1)(D) ("Count Two"). He was

sentenced to seventy-eight months in prison for Count Three and six

months in prison for Count Two. Torres argues that these sentences

are procedurally flawed because the district court did not take

into account some factors enumerated in 18 U.S.C. § 3553(a) during

sentencing. He also argues that his sentence is procedurally

unreasonable because the district court improperly considered his

prior arrests in sentencing. After careful consideration of both

claims, we affirm.

I. Background

Because Torres pleaded guilty, the facts and procedural

history are taken from the Presentence Investigation Report

("PSR"), the plea agreement, and the sentencing hearing. United

States v. King, 741 F.3d 305, 306 (1st Cir. 2014). On May 28,

2013, Puerto Rico Police Agents assigned to the Corozal Police

Station received an anonymous tip, which led them to conduct a

traffic stop of a Mazda pick-up truck. While approaching the

driver's side of the vehicle, the officers observed a firearm,

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specifically a Glock pistol, model 23, caliber .40, with an

obliterated serial number. The firearm was loaded with 14 rounds

of ammunition. The police officers arrested the driver, Torres. 

During a search of the vehicle, police seized 153 baggies of

marijuana and $2,115 in cash. Torres admitted to possessing the

"firearm in furtherance of a drug trafficking offense."

Pursuant to a plea agreement, Torres pleaded guilty on

July 22, 2013, to violating 21 U.S.C. § 841(a)(1), (b)(1)(D),

knowingly and intentionally possessing marijuana with intent to

distribute, and one count of violating 18 U.S.C. § 924(c)(1)(A),

possession of a firearm in furtherance of a drug trafficking crime. 

Pursuant to § 2D1.1 of the Sentencing Guidelines, Torres's Base

Offense Level was calculated to be 6. Because Torres accepted

responsibility, a two-level decrease was applied, pursuant to

§ 3E1.1(a). This brought Torres's Total Offense Level to 4 for

Count Two. The PSR also stated that Torres had a total criminal

history score of 3, which, under USSG Chapter 5, Part A, placed

Torres in Criminal History Category II. The Plea Agreement stated

that "[f]or Count Two the parties agree to recommend a sentence of

imprisonment at the lower end of the applicable range . . . . [And]

for Count Three the parties agree to recommend a sentence of sixty

months."

A sentencing hearing was held on October 21, 2013, and

Torres was sentenced to six-months imprisonment on Count Two

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(though the Plea Agreement recommended no prison sentence) and

seventy-eight months imprisonment on Count Three (though the Plea

Agreement recommended only sixty months). The sentences were to be

served consecutively to each other and to a pending state court

sentence.1 Torres was to be placed on supervised release for three

years as to Count Two and five years as to Count Three, to be

served concurrently with each other. Lastly, Torres was ordered to

pay a special monetary assessment of two hundred dollars. This

timely appeal followed.

II. Discussion

Torres presents two arguments on appeal. First, he

argues that the district court erred when it failed to take into

account some § 3553(a) factors at sentencing. Second, he argues

that the court erred in factoring his prior arrests into his

sentence.

A. 18 U.S.C. § 3553(a) Factors

Torres argues that his sentence is procedurally flawed

because the district court failed to take into account mitigating

§ 3553(a) factors at sentencing. The PSR lists the following

mitigating factors: Torres is a father of two children. He

maintains close ties to his family and community. He went to

school, played sports, and began an associate degree, which he did

not complete because he was able to find employment. Torres also

1

 Torres also has to serve a two-year sentence at the state level.

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has an extensive work history, which includes working in

promotions, bartending, and running his own restaurant and sports

bar. Torres argues that the district court should have taken these

mitigating factors into account during sentencing and that the

failure to do so renders his sentence procedurally flawed.

Because Torres failed to preserve his objection, we

review for plain error. See United States v. Fernández-Hernández,

652 F.3d 56, 71 (1st Cir. 2011). Under plain error review,

[a]n appellate court may, in its discretion,

correct an error not raised at trial only

where the appellant demonstrates that (1)

there is an error; (2) the error is clear or

obvious, rather than subject to reasonable

dispute; (3) the error affected the

appellant's substantial rights, which in the

ordinary case means it affected the outcome of

the district court proceedings; and (4) the

error seriously affects the fairness,

integrity or public reputation of judicial

proceedings.

Id. at 64 (quoting United States v. Marcus, 560 U.S. 258, 261

(2010)). "[A] reversal under plain error review requires a

reasonable probability that, but for the error, the district court

would have imposed a different, more favorable sentence." United

States v. Medina-Villegas, 700 F.3d 580, 583 (1st Cir. 2012)

(quoting United States v. Mangual-García, 505 F.3d 1, 15 (1st Cir.

2007)).

This court has a two-fold process for reviewing

sentences: first, we "determine whether the sentence imposed is

procedurally reasonable and then determine whether it is

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substantively reasonable." United States v. Clogston, 662 F.3d

588, 590 (1st Cir. 2011) (citing United States v. Martin, 520 F.3d

87, 93 (1st Cir. 2008)). Procedural errors include "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 —

including an explanation for any deviation from the Guidelines

range." Gall v. United States, 552 U.S. 38, 51 (2007).

The district court is not obligated to articulate all the

factors it took into consideration at sentencing. See United

States v. Turbides-Leonardo, 468 F.3d 34, 40 (1st Cir. 2006). This

court has previously held that a sentencing judge does not have to

"go through each of the § 3553(a) factors one by one." United

States v. Aponte-Vellón, 754 F.3d 89, 94 (1st Cir. 2014) (citing

United States v. Marsh, 561 F.3d 81, 86 (1st Cir. 2009) ("[W]e do

not require the [district] court to address [the § 3553(a)]

factors, one by one, in some sort of rote incantation when

explicating its sentencing decision." (internal quotation marks

omitted))). "Even silence is not necessarily fatal; a court's

reasoning can often be inferred by comparing what was . . .

contained in the presentencing report . . . with what the judge

did." United States v. Gilman, 478 F.3d 440, 446 (1st Cir. 2007)

(quoting Turbides-Leonardo, 468 F.3d 34, 41) (internal quotation

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marks omitted). "[A] judge's statement that he has considered all

of the § 3553(a) factors is entitled to significant weight." 

United States v. Arroyo-Maldonado, 791 F.3d 193, 199 (1st Cir.

2015) (citing United States v. Santiago-Rivera, 744 F.3d 229, 233

(1st Cir. 2014)).

We are satisfied that the district court did not

procedurally err as alleged. The PSR in this case contained all of

the relevant mitigating information that Torres emphasizes. And,

critically, the record makes clear that the court reviewed the PSR

and considered it in formulating its sentence. Indeed, the Judge

explicitly said, "Let's take a look at the facts of this case for

a minute, because you know I'm going to look into this. And I

already did." Equally important, the district court made plain

that it took all of the applicable § 3553(a) factors into account

and explained why the court reached the sentence it did. That the

court focused on Torres's criminal history and the nature of the

crime, rather than the mitigating factors he emphasized, does not

suggest that the court simply failed to consider those factors. 

Instead, the court made quite clear that it considered all of the

information it had before it. We are therefore satisfied that the

district court did not err, plainly or otherwise, in failing to

provide a detailed explanation respecting each mitigating factor.

Nor, we briefly note, has Torres even attempted to meet

his burden of establishing prejudice. See Medina-Villegas, 700

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F.3d at 583. That is, he has failed to argue that, assuming an

error had occurred, it impacted his sentence. Indeed, we doubt he

could satisfy this burden given the district court's thorough

explanation of why it chose the sentence it did. That is, the

court made clear that the sentence was warranted given the

defendant's background, the nature of the crime, and the relevant

§ 3553(a) factors. There is thus not a "reasonable probability

that, but for the error, the district court would have imposed a

different, more favorable sentence." Id.

B. Torres's Past Arrests

The crux of Torres's second argument is that the district

court erred in using his prior arrests to show that he is a "gun

lover" and "does not belong on [the] streets." Torres points to

various statements made by the district court as evidence that it

sentenced him "based on unsupported misapprehensions about the

legitimacy of the three dismissed cases, and erred in using those

cases as a basis" to mischaracterize him. The district court

described the defendant as a "lucky man" after his previous

encounters with the law. The court also referred to him as a

"gun-lover" and "a danger to the community" because "[a]ll these

charges got dismissed under Rule 64, which is a speedy trial

basically, without prejudice [and were] never refiled." Because

Torres did not preserve his objection, we review for plain error. 

See Fernández-Hernández, 652 F.3d at 64.

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As an initial matter, we must determine if the district

court erred in evaluating Torres's criminal history while

determining his sentence. Section 3553(a)(1) states the factors

that can be considered during sentencing, which include, "the

nature and circumstances of the offense and the history and

characteristics of the defendant." 18 U.S.C. § 3553(a)(1). We

have interpreted "history and characteristics of the defendant" to

include a defendant's criminal history. See, e.g., United States

v. Politano, 522 F.3d 69, 74-75 (1st Cir. 2008). Subsections

3553(a)(2)(B) and (C) establish that both deterrence and combating

recidivism are legitimate factors to be taken into account when

determining a sentence. See id. at 74 ("Sections 3553(a)(1) and

3553(a)(2)(c) invite the district court to consider, broadly, 'the

nature and circumstances of 'the offense and the history and

characteristics of the defendant' and the need for the sentence

imposed . . . to protect the public from further crimes of the

defendant.'"). Indeed, we have held that multiple arrests can be

indicative of a pattern. See United States v. Zapete-García, 447

F.3d 57, 61 (1st Cir. 2006) (finding that "a series of past arrests

might legitimately suggest a pattern of unlawful behavior even in

the absence of any convictions").

The district court did not plainly err by factoring in

Torres's arrest history. It is well established that a district

court may consider a wide range of circumstances relating to the

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defendant's history in fashioning a sentence. See Pepper v. United

States, 562 U.S. 476, 487-88 (2011). Likewise, "[a] record of past

arrests or dismissed charges may indicate a pattern of unlawful

behavior even in the absence of any convictions." United States v.

Flores-Machicote, 706 F.3d 16, 21 (1st Cir. 2013) (quotation marks

omitted). In the present case, it is clear that Torres's arrest

record indicates a pattern of unlawful behavior as the charges were

related to drugs and firearms.

There was ample evidentiary support for the court's

account of Torres's past pattern of criminality. The PSR shows

that Torres was convicted of unlawfully possessing a firearm,

selling a firearm, and unlawfully possessing ammunition after

pleading guilty on July 17, 2013, in the Superior Court of Puerto

Rico. He also has three previous arrests for alleged violations of

Puerto Rico law. These facts drawn from the PSR may be taken as

established as this court has previously held that the

"unobjected-to facts contained in a PSR ordinarily are considered

reliable evidence for sentencing purposes." United States v.

Fernández-Cabrera, 625 F.3d 48, 54 (1st Cir. 2010) (quotation marks

omitted).

Torres has failed to establish that the district court's

use of his prior arrests and gun possession conviction constituted 

plain error as he has failed to show that this reliance was

unreasonable or that not using the information would have led to a

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lower sentence. Under the circumstances of this case, the district

court's sentence was not procedurally unreasonable because of the

court's reference to Torres's record of prior arrests.

III. Conclusion

Having found no plain error in the proceedings of the

district court, Torres's sentence is affirmed.

Affirmed.

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