United States of America v. Jesúsmanuel Laureano-Pérez

United States Court of Appeals
For the First Circuit
No. 16-2399
UNITED STATES OF AMERICA,
Appellee,
v.
JESÚS MANUEL LAUREANO-PÉREZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Torruella, Boudin, and Barron,
Circuit Judges.
Jeannine N. Rodríguez and JNR Law Group on brief for
appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Kelly A. Zusman, Assistant United States Attorney, on brief for
appellee.
June 8, 2018

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BOUDIN, Circuit Judge. Jesús Manuel Laureano-Pérez
("Laureano") appeals his sentence following his guilty plea in the
district court to a two-count indictment. One count charged
Laureano with possession of a firearm by a convicted felon, 18
U.S.C. § 922(g)(1); the other with unlawful possession of a machine
gun, 18 U.S.C. § 922(o). After a hearing, the district court on
November 2, 2016, sentenced Laureano to sixty months' imprisonment
on each count, to be served concurrently. Along with other terms,
the sentence directed periodic drug testing of the defendant during
his subsequent supervised release.
The background facts are these. On May 5, 2016, Puerto
Rico police agents investigating drug dealing in San Juan saw
Laureano standing by a car and, when he in turn saw their marked
police car, he fled on foot. The police pursued him and later
said they saw Laureano draw a firearm from a fanny pack, throw it
over a fence, and toss the other contents of the fanny pack on the
ground. The police recovered the firearm, high-capacity magazines
for the weapon, and four cell phones. The authorities then
discovered that Laureano, at the time he fled, had been serving a
term of supervisory release following his federal conviction in
2013 of possession of cocaine with intent to distribute. 21
§ U.S.C. 841(a)(1).
In due course, Laureano pled guilty to both counts
arising out of the fanny pack incident. At the sentencing hearing,

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the district court learned that two days prior, the judge in
Laureano's original drug distribution case ordered him to serve
two additional years of incarceration for violating his supervised
release terms.
As for the firearm charges stemming from the fanny pack
incident, the district court determined that the guideline
sentencing range for both counts was thirty-seven to forty-six
months in prison, although the machine gun statute allowed for a
sentence up to and including ten years' imprisonment. 18 U.S.C.
§ 924(a)(2). The government requested a sentence at the top of
the guideline range, forty-six months. Defense counsel requested
a sentence of thirty-seven months. The district court ultimately
varied from the guideline recommendation, imposing a sentence of
sixty months on each count, to run concurrently. Laureano also
received a three-year term of supervised release for each count,
to be served concurrently. The new prison sentence would run
consecutive with the twenty-four-month sentence on revocation that
Laureano received the prior day, with the new sentence to be served
first.
On this appeal, Laureano first objects to the
sixty-month sentences. Laureano argues that the district court
improperly relied on community considerations and in doing so,
failed to explain why an upward variance was warranted.

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Just before the end of the sentencing hearing, defense
counsel offered a portmanteau reference to the procedural and
substantive unreasonableness of the sentence--a classic general
objection rather than a specific one. United States v. Matos-de-
Jesús, 856 F.3d 174, 177-178 (1st Cir. 2017); United States v.
Soto-Soto, 855 F.3d 445, 448 n.1 (1st Cir. 2017). Our circuit
case law is in some disorder, see United States v. Millán-Román,
854 F.3d 75, 80–81 (1st Cir. 2017); United States v. Vargas-García,
794 F.3d 162, 167 (1st Cir. 2015); United States v. Ruiz-Huertas,
792 F.3d 223, 228 & n.4 (1st Cir. 2015), but whether reviewed for
abuse of discretion or for plain error, the district court's
position stands.
During sentencing, the district court judge referred to
"violent crimes and murders" occurring in "these weapons cases"
and an uptick in the number of murders in Puerto Rico. He also
referred to a joint firearms initiative and local law enforcement
strategies to curtail the murder rate.
A district court has considerable latitude to vary above
or below the once rigidly enforced guidelines sentencing range,
Gall v. United States, 552 U.S. 38, 47-49 (2007), but some reason
must be given or apparent from context. Additionally, any sentence
must concern itself primarily with the circumstances and behavior
of the defendant. United States v. Flores-Machicote, 706 F.3d 16,
21 (1st Cir. 2013) (a variance "'should typically be rooted either

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in the nature and circumstances of the offense or the
characteristics of the offender.'" (quoting United States v.
Martin, 520 F.3d 87, 91 (1st Cir. 2008))).
Although the district court judge considered community
considerations, he did not ignore Laureano's individual
circumstances, nor did he fail to justify the variance. See United
States v. Paulino-Guzman, 807 F.3d 447, 450-451 (1st Cir. 2015).
The judge explicitly discussed Laureano's age, education, and work
history, before noting the seriousness of the offense, respect for
law, and deterrence. See id. at 451. The judge then described
Laureano's firearm offenses, including Laureano fleeing with his
machine gun.
Recent First Circuit decisions by successive panels have
upheld variances on similar facts, despite a possible argument
that this disregards the conventional rationale for variances.
United States v. Garay-Sierra, 885 F.3d 7, 15-16 (1st Cir. 2018)
(Thompson, J.); United States v. Fuentes-Echevarria, 856 F.3d 22,
25-26 (1st Cir. 2017) (Howard, C.J.); United States v. Vázquez,
854 F.3d 126, 130 (1st Cir. 2017) (Torruella, J.); Paulino-Guzman,
807 F.3d at 450-51 (Kayatta, J.); United States v. Díaz-Arroyo,
797 F.3d 125, 129-130 (1st Cir. 2015) (Selya, J.). Given these
precedents, the district court did not even arguably commit error.
Laureano's other claim on appeal is that the district
court erred in subjecting him to a drug testing requirement.

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Although fairly alerted by the Probation Officer's recommendation,
counsel made no specific objection to the testing requirement when
first raised as a possibility or when finally imposed. The
defendant forfeited his objection and his claimed error, if it
occurred, is not plain error. United States v. Garrasteguy, 559
F.3d 34, 40 (1st Cir. 2009) (collecting cases).
The Probation Officer recommended random drug testing,
which was a supervised release condition previously imposed
following Laureano's incarceration for the 2013 drug conviction.
Laureano did not object to the condition and so the district court
had no occasion to discuss it, but the court's reasoning is easily
discerned. United States v. Quiñones-Otero, 869 F.3d 49, 51-52
(1st Cir. 2017). As a convicted drug dealer, Laureano could have
had ample access to drugs, and he declined to give a urine sample
when arrested in this case. Further, given that the new offense
occurred while Laureano was on supervised release for his prior
drug offense, the district court clearly considered the "history
and characteristics of the defendant," 18 U.S.C. § 3553(a)(1), in
its imposition of random drug screens. The condition is thus
reasonably related to the legitimate objectives of supervised
release. United States v. Colón de Jesús, 831 F.3d 39, 44-45 (1st
Cir. 2016).
Affirmed.

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