United States of America v. Nicholson Silva-Hernandez, a/k/a Nico, a/k/a Niko

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 16-1371
UNITED STATES OF AMERICA,
Appellee,
v.
NICHOLSON SILVA-HERNANDEZ,
a/k/a Nico, a/k/a Niko,
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
Howard, Chief Judge,
Selya and Stahl, Circuit Judges.
Luis A. Guzmán Dupont on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Thomas F. Klumper, Assistant United States
Attorney, Senior Appellate Counsel, on brief for appellee.
May 3, 2017

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STAHL, Circuit Judge. Nicholson Silva-Hernandez
("Silva") pled guilty to one count of conspiracy to possess with
intent to distribute controlled substances, in violation of
21 U.S.C. §§ 841 and 846. Silva now challenges his forty-six-month
sentence on the grounds that it was procedurally and substantively
unreasonable. We disagree, and affirm the imposed sentence.
I. Facts & Background 1
On August 19, 2014, a federal grand jury in Puerto Rico
indicted Silva for conspiracy to distribute controlled substances.
The underlying conduct involved his work as a runner for a drug
organization that distributed methamphetamine, a Schedule II
controlled substance, and Gamma-butyrolactone, a Schedule I
controlled substance. Specifically, the indictment charged Silva
with distributing at least 50, but less than 150, grams of
methamphetamine for the drug organization. Silva entered a
straight guilty plea to the conspiracy count.
In the presentence report ("PSR"), the probation officer
calculated, per the United States Sentencing Guidelines
("U.S.S.G." or "Guidelines"), Silva's base offense level to be
thirty because his offense involved a quantity of methamphetamine
between 50 and 150 grams. See U.S.S.G. § 2D1.1(c)(5). However,
1 As this appeal follows a guilty plea, we recount the facts
as established by the presentence report and the sentencing
transcript. See United States v. King, 741 F.3d 305, 306 (1st
Cir. 2014).

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the PSR also recommended that the district court apply a three-
level reduction based on Silva's acceptance of responsibility.
See id. § 3E1.1. When accompanied by a criminal history category
of I, the PSR endorsed a Guidelines sentencing range of 70 to 87
months' imprisonment. Meanwhile, Silva also requested a two-level
reduction under the Guidelines' so-called "safety valve"
provision, id. § 5C1.2, a request to which the government agreed.
This further reduction yielded a base offense level of twenty-five
and a corresponding Guidelines sentencing range of 57 to 71 months'
imprisonment.
At sentencing, the district court indicated that it had
"considered the other sentencing factors as set forth in 18 U.S.C.
[§] 3553(a)" and determined that a further two-level reduction in
Silva's base offense level was warranted. The district court
concluded that Silva merited this reduction based on several
factors, including his full-time enrollment at the University of
Puerto Rico, his employment at a local restaurant, his history of
mental health issues, substance abuse, and treatment, his
cooperation with the authorities, and his status as a first-time
offender. The district court ultimately sentenced Silva to
forty-six months' imprisonment and five years of supervised
release.
Silva did not object to the sentence at that time, but
filed a timely appeal to this court.

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II. Discussion
We review preserved claims of procedural error under
"the deferential abuse of discretion standard," United States v.
Pantojas-Cruz, 800 F.3d 54, 58 (1st Cir. 2015), and claims not
raised below for plain error, United States v. Aguasvivas-
Castillo, 668 F.3d 7, 13-14 (1st Cir. 2012). However, it remains
"murky" whether the same rubric applies to claims that a sentence
is substantively unreasonable. United States v. Pérez, 819 F.3d
541, 547 (1st Cir. 2016) (noting it is unclear whether unpreserved
claims that a sentence is unreasonable merit abuse of discretion
review). Regardless, with whatever standards of review we employ
here, the results are the same: both of Silva's challenges fail.
A. Procedural Reasonableness
To start, Silva argues that his sentence was
procedurally unsound. Procedural error in sentencing decisions
generally includes "failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing
to adequately explain the chosen sentence." United States v.
Politano, 522 F.3d 69, 72 (1st Cir. 2008) (alteration in original)
(quoting Gall v. United States, 552 U.S. 38, 51 (2007)).
Here, Silva concedes that the district court
appropriately calculated the pertinent sentencing range (indeed,

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the district court varied downward from the original base offense
level called for by the Guidelines, a base offense level that the
parties agreed was appropriate at the time). Rather, he maintains
that the district court "did not adequately explain the rationale
for the sentence." This argument is meritless. 2 The district
court "state[d] in open court the reasons for its imposition of
[the] particular sentence," United States v. Rivera-Gonzalez, 626
F.3d 639, 646 (1st Cir. 2010) (quoting 18 U.S.C. § 3553(c)), and
in doing so emphasized that it had "taken into consideration all
of the factors in [18] U.S.C. [§] 3553, the elements of the
offense, and the need to promote respect for the law and protect
the public from further crimes of the defendant, as well as address
the issue of deterrence and punishment." This type of analysis is
precisely what a sentencing judge is instructed by statute to do,
and a sentencing court is under no obligation, contrary to Silva's
arguments, to explain why it did not decide to impose an even lower
downward sentence. See Ruiz-Huertas, 792 F.3d at 228 (noting that
although a sentencing court typically "ha[s] a duty . . . to
[adequately] explain its choice of a particular sentence, it has
2 We note that Silva did not object to the sentence at the
time, and normally our review would be for plain error only.
However, even giving Silva the benefit of the doubt, the district
court did not abuse its discretion because it adequately explained
the basis for its sentence, accurately calculated the appropriate
Guideline sentence, and considered the pertinent § 3553(a)
factors.

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'no corollary duty to explain why it eschewed other suggested
sentences'" (quoting United States v. Vega-Salgado, 769 F.3d 100,
104 (1st Cir. 2014))).
We therefore discern no procedural error on the part of
the sentencing court in this instance.
B. Substantive Reasonableness
Silva next asserts that his forty-six-month sentence is
substantively unreasonable. Specifically, Silva points to several
mitigating factors that he believes the district court failed to
fully appreciate during the sentencing process, including his
young age, his troubled upbringing, his struggles with anxiety,
his remorse for his crime, his potential for rehabilitation, his
low risk of recidivism, and his status as his ill father's
caregiver. We disagree.
"A sentence is substantively reasonable so long as it
rests on a 'plausible sentencing rationale' and embodies a
'defensible result.'" Ruiz-Huertas, 792 F.3d at 228 (quoting
United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008)). Our
review is limited to "whether the sentence, in light of the
totality of the circumstances, resides within the expansive
universe of reasonable sentences." King, 741 F.3d at 308. To
that end, "[c]hallenging a sentence as substantively unreasonable
is a burdensome task in any case, and one that is even more
burdensome where, as here, the challenged sentence is within a

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properly calculated [Guidelines sentencing range]." 3 United States
v. Clogston, 662 F.3d 588, 592-93 (1st Cir. 2011).
Here, the district court gave a plausible rationale for
Silva's sentence, and the end result was entirely defensible.
Silva glosses over the district court's express statement at the
sentencing hearing that it had "consider[ed] the facts of this
case" as well as "the defendant's characteristics" before
"vary[ing downward] from the [G]uidelines two levels." This
statement is in addition to others where the district court
discussed, among other things, Silva's age, educational
background, work experience, history of mental health issues and
substance abuse, lack of any prior convictions or arrests, and
compliance with the conditions of his supervised release. As we
have indicated before, "[t]hat the sentencing court chose not to
attach to certain of the mitigating factors the significance that
the appellant thinks they deserved does not make the sentence
unreasonable." Id. at 593. Instead, "[t]he significance given to
each relevant factor is for the district court, not an appellate
3 It is inconsequential whether we term Silva's sentence as
being within a properly calculated Guidelines sentencing range or,
because the district court varied Silva's base offense level
downward, a "substantial downward variance" from such a range.
See United States v. Floyd, 740 F.3d 22, 39-40 (1st Cir. 2014)
(noting that when "a district court essays a substantial downward
variance from a properly calculated guideline sentencing range, a
defendant's claim of substantive unreasonableness will generally
fail"). In either event, we conclude the sentence remains
substantively reasonable.

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court, to decide." United States v. Joubert, 778 F.3d 247, 256
(1st Cir. 2015). Accordingly, Silva's sentence "resides within
the expansive universe of reasonable sentences." United States v.
Pedroza-Orengo, 817 F.3d 829, 837 (1st Cir. 2016) (quoting King,
741 F.3d at 308).
III. Conclusion
For the foregoing reasons, Silva's sentence is AFFIRMED.

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