23-1503 United States of America v. Jonathan Kemuel Fargas-Reyes

United States Court of Appeals
For the First Circuit
Nos. 23-1502
23-1503
UNITED STATES OF AMERICA,
Appellee,
v.
JONATHAN KEMUEL FARGAS-REYES,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Montecalvo, Thompson, and Aframe,
Circuit Judges.
Jackson Whetsel, with whom Rachel Brill, Federal Public
Defender, Franco L. Pérez-Redondo, Assistant Public Defender,
Supervisor, Appellate Section, and Alejandra Bird-López, Assistant
Public Defender, were on brief, for appellant.
Ethan A. Sachs, with whom W. Stephen Muldrow, United States
Attorney, Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Appellate Chief, and Maarja T. Luhtaru, Assistant United
States Attorney, were on brief, for appellee.
January 10, 2025

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THOMPSON, Circuit Judge.
PREFACE
Jonathan Fargas-Reyes is a repeat firearms offender.
Read on to learn more about his brushes with the law and why we
can't vacate his sentences for committing another gun crime and
for violating an earlier supervised release.
HOW THE CASE GOT HERE1
Back in September 2021, Fargas (as we'll now call him,
per Spanish-naming customs) pled guilty to unlawfully possessing
a Glock pistol changed to fire as a machinegun. See 18 U.S.C.
§ 922(o). A federal judge sentenced him to 33 months in prison
plus 3 years of supervised release.2 He started supervised release
in November 2021. But he didn't stay out of trouble for very long.
Jump ahead only a few months, to January 2022. Puerto
Rico police spied Fargas outside a house he shared with girlfriend
1 The major background events are undisputed unless otherwise
noted (we simplify the details here rather aggressively, adding
more info later as needed for specific issues).
2 Supervised release and the conditions on that release help
"criminal defendants and the public alike by facilitating sooner
rather than later" the offenders' "re-entry into society." See
United States v. Shultz, 733 F.3d 616, 624 (6th Cir. 2013); see
also United States v. Siegel, 753 F.3d 705, 708 (7th Cir. 2014)
(stating that "[r]educing recidivism is the main purpose of
supervised release, though some of the conditions of supervised
release are intended to help the released prisoner adjust to life
on the outside even if there is no worry that without them he would
be likely to commit crimes").

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Mary Herrera-Cruz (officers had heard he had a stolen Hyundai
Tucson there). He was packing a pistol in his waistband and
holding an AK-47-looking rifle in his right hand. Standing next
to Herrera's Kia Rio, Fargas popped open the hatchback, put the
AK-47 in a duffel bag and the pistol in a backpack, and dropped
them both in the rear area before closing the door.
Herrera then walked over with her two young daughters.
And everyone — Herrera (driver's seat), Fargas (front passenger's
seat), and the girls (back seats) — got in the Kia. Fargas pulled
a ski mask with eyeholes down over his face. Herrera drove off.
The police tried to stop them. But Herrera kept right
on going. Following a short chase, Fargas stuck his arms out the
car's window. Herrera stopped the Kia. And Fargas got out. Not
ready (apparently) to give herself up, Herrera sped away.
After arresting Fargas, the police again raced after
Herrera. Spotting her Kia on the side of the road, officers
watched her fling the duffel bag into some bushes. She then closed
the hatchback, got behind the wheel, and tried again to shake them.
But she hit a barrier and then another vehicle (with the two girls
still seated in the back of the Kia).
The police arrested Herrera too. And their search of
the recovered duffel bag and backpack revealed 2 Glock pistols
modified to fire as machineguns, 1 AK-47 pistol, 1 drum magazine,

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6 high-capacity magazines, and 173 rounds of assorted-caliber
ammo.
Indicted federally on firearms-related charges, Fargas
and Herrera signed plea agreements with the government. Fargas —
in February 2023 — pled guilty to illegally possessing firearms
and ammunition as a convicted felon. See 18 U.S.C. § 922(g)(1).
And Herrera — two months earlier, in December 2022 — pled guilty
to aiding and abetting a convicted felon in illegally possessing
firearms and ammunition. See id.; see also 18 U.S.C. § 2.
We'll have plenty to say later about what happened at
sentencing.3 But for now it's enough to note the following. The
3 For anyone needing a refresher on how a federal district
judge approaches sentencing, here it is. Using the now-advisory
federal sentencing guidelines (Fargas's judge used the 2021
guidelines edition, the one in effect at the time of sentencing),
the judge sets the defendant's
base offense level — i.e., a point score for
a specified offense or group of offenses. The
[judge] then make[s] adjustments for any
aggravating or mitigating factors in the
defendant's case, thus arriving at a total
offense level. The [judge] also assign[s]
points based on the defendant's criminal
history — points that get converted into
various criminal history categories,
designated by Roman numerals I through VI.
Armed with this info, the judge turns to the
guidelines's sentencing table. And by
plotting the defendant's total offense level
along the table's vertical axis and his
criminal history category along the table's
horizontal axis, the judge ends up with an

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advisory prison range. From there, the judge
sees if any departures are called for,
considers various sentencing factors [listed
in 18 U.S.C. § 3553(a)], and determines what
sentence (whether within, above, or below the
suggested range) seems appropriate.
United States v. Martínez-Benítez, 914 F.3d 1, 2 n.2 (1st Cir.
2019) (citations omitted). As for the § 3553(a) factors, there
are seven of them.
Factor one is "the nature and circumstances of
the offense and the history and
characteristics of the defendant." 18 U.S.C.
§ 3553(a)(1). Factor two is
the need for the sentence . . .
(A) to reflect the seriousness of
the offense, to promote respect for
the law, and to provide just
punishment for the offense; (B) to
afford adequate deterrence to
criminal conduct; (C) to protect the
public from further crimes of the
defendant; and (D) to provide the
defendant with needed educational
or vocational training, medical
care, or other correctional
treatment in the most effective
manner.
Id. § 3553(a)(2). Factor three is "the kinds
of sentences available." Id. § 3553(a)(3).
Factor four is the guidelines. Id.
§ 3553(a)(4). Factor five is "any pertinent
policy statement . . . issued by the
[s]entencing [c]ommission." Id.
§ 3553(a)(5). Factor six is "the need to
avoid unwarranted sentence disparities."
Id. § 3553(a)(6). And factor seven is "the
need to provide restitution to any victims."
Id. § 3553(a)(7).
United States v. Correa-Osorio, 784 F.3d 11, 28 n.24 (1st Cir.
2015); see also Rita v. United States, 551 U.S. 338, 347-48 (2007).
The probation office prepares a "presentence investigation report"

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judge gave Fargas 120 months in prison for the new crime (the
statutory max), well above both the parties' recommended range (57
to 71 months, with Fargas requesting 57 months and the government
requesting 71 months) and the judge's calculated range (70 to 87
months, which mimicked probation's suggested range).4 Because
Fargas's conduct violated his supervised release for his earlier
unlawful-gun-possession crime, the judge gave him an additional 24
months in prison (3 months above the uncontested 15-to-21-months
range) for that infraction — to be served consecutively. The judge
sentenced Herrera to 37 months in prison for her crime, well above
both the parties' recommended range (18 to 24 months) but at the
very bottom of the judge's calculated range (37 to 46 months, which
mirrored probation's suggested range).5
On appeal, Fargas (the only defendant before us) accuses
the government of breaching the plea agreement and criticizes the
judge for selecting procedurally and substantively unreasonable
sentences (we affirmed Herrera's sentence in an unpublished
to help the judge in the sentencing process. We'll just call that
document (commonsensically if somewhat unimaginatively) the
"report" the rest of the way.
4 A sentence like Fargas's — one that's above the recommended
guidelines range — is often referred to as an above-guidelines
sentence or as an upwardly variant sentence. We'll use the two
terms (or something similar) interchangeably.
5 The same judge sentenced both Fargas and Herrera.

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judgment and so discuss her case details only on a need-to-know
basis).
STANDARDS OF REVIEW
We review de novo whether the government breached a plea
agreement (i.e., without deference to the district judge's ruling
on this legal issue). See, e.g., United States v. Almonte-Nuñez,
771 F.3d 84, 89 (1st Cir. 2014). But we do so only for preserved
claims (i.e., claims the defendant raised in the court below).
See id. Unpreserved claims — if not waived (one waives a claim by
intentionally relinquishing or abandoning it) — receive plain-
error review, a notoriously difficult standard to satisfy. See,
e.g., id.; see also United States v. Olano, 507 U.S. 725, 733
(1993). To win, a defendant must show not just an error but an
error that's obvious (meaning an indisputable error under
controlling law, such that the judge should've acted without
counsel's prompting), which affects the defendant's substantial
rights (meaning the error influenced the proceeding's outcome),
and which would seriously damage the fairness, integrity, or public
perception of the judicial system if we (using our discretion)
don't fix it. See, e.g., Puckett v. United States, 556 U.S. 129,
135 (2009); United States v. Sansone, 90 F.4th 1, 7, 8 (1st Cir.
2024); United States v. McCullock, 991 F.3d 313, 317 (1st Cir.

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2021); United States v. Montañez-Quiñones, 911 F.3d 59, 63-64 (1st
Cir. 2018).
Conversely, we review a sentence's procedural and
substantive reasonableness for abuse of discretion — with
underlying factfindings inspected for clear error — only if the
defendant objected below. See, e.g., United States v. Razo, 782
F.3d 31, 36 (1st Cir. 2015). Otherwise — assuming the arguments
aren't waived — plain-error review applies. See, e.g., United
States v. López-Felicie, 109 F.4th 51, 57 (1st Cir. 2024).
PLEA-BREACH CLAIM
First up is the plea-breach issue, starting with some
legal basics. Plea agreements are like contracts. See, e.g.,
United States v. O'farrill-López, 991 F.3d 45, 48 (1st Cir. 2021).
So when prosecutors agree to make sentencing suggestions, they
"must carry out [their] part of the bargain by making the promised
recommendation[s]." See United States v. Benchimol, 471 U.S. 453,
456 (1985). Being held "to the most meticulous standards of both
promise and performance," they must do more than pay "lip service"
to their obligations. See United States v. Lessard, 35 F.4th 37,
42 (1st Cir. 2022) (cleaned up and emphasis added) (first quoting
United States v. Clark, 55 F.3d 9, 14 (1st Cir. 1995), and then
quoting Almonte-Nuñez, 771 F.3d at 89). But their duty to "honor"
their plea-agreement pledges doesn't occur in a "vacuum." See

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United States v. Colón-Rosario, 921 F.3d 306, 312 (1st Cir. 2019).
They must "answer the [judge's] questions forthrightly," for
example. See id. Also if the agreement lets them request a
sentence within a range that's "stiffer" than the defense's
request, they must tell the judge "why [their] higher sentence" is
better. See Lessard, 35 F.4th at 43 (cleaned up). And when
performing "these duties," they needn't "sugar-coat the facts"
either. See Colón-Rosario, 921 F.3d at 312.
Moving from generalities to specifics, we inspect the
language of Fargas's plea agreement. One key provision says that
he and the government agreed — "after due consideration of the
relevant factors" cataloged in § 3553(a) (see our footnote 3) —
that they would "request" a prison term within the range "of 57-
71 months." Another says that they agreed that "any recommendation
by either party for a term of imprisonment below or above the
stipulated sentence recommendation will constitute a material
breach of the [p]lea [a]greement." And yet another says that he
agreed that the to-be-imposed sentence "will be determined solely
by the [judge]," who's "not required to accept" the parties'
"recommended [sentencing] calculations."
Sort of building off this document, Fargas reasons that
the government broke the agreement "by effectively advocating for"
a higher-than-bargained-for sentence. His logic — as we grasp it

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— goes something like this. (1) 71 months is the top of the
parties' "57-71 months" suggested range. (2) By the time of
sentencing, however, probation had recommended a 70-87-months
range. (3) Probation's analysis — unlike the parties' — included
(i) a stolen-gun sentencing enhancement because the National Crime
Information Center's database listed one of the Glocks as stolen;
(ii) a criminal-history enhancement because he "committ[ed] the
instant offense while under a criminal justice sentence," known in
sentencing parlance as a status-points adjustment; and (iii) a
possible upward variance based partly on probation's view that the
guidelines didn't account for the 1 drum magazine, 6 high-capacity
magazines, and 173 bullets recovered.6 (4) Objecting to these
aspects of probation's appraisal, Fargas requested a 57-months
sentence — the lowest suggested sentence under the agreement.
(5) But in requesting 71 months — the highest suggested sentence
under the agreement — the prosecutor "emphasiz[ed] aggravating
facts," without modifying her "pitch[]" to probation's recently
proposed 71-87-months range. And "given the context," her
"arguments read as reasons" — made with knowing winks and nods —
6 Just as an fyi, we discuss the subjects identified in
romanettes (i)-(iii) later in the opinion as well.

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"to drive the sentence upward within" probation's calculated
"range" and "even beyond" (or so his thesis wraps up).7
Commendably, Fargas correctly concedes that he must show
plain error because he didn't push that argument below. But faced
with what looks to be a "90-degree climb," he can't scale plain
error's challenging heights. See United States v. Takesian, 945
F.3d 553, 562 (1st Cir. 2019).
Knowing that "[t]he simplest way" to handle an issue "is
often the best" way, see Stor/Gard, Inc. v. Strathmore Ins. Co.,
717 F.3d 242, 248 (1st Cir. 2013) (quotation marks omitted), we
needn't linger. "Not all breaches will be clear or obvious," our
judicial superiors tell us. See Puckett, 556 U.S. at 143. Which
is why plain error's second prong — requiring the complaining party
to flag an undeniable mistake — often has "'bite' in plea-agreement
7 Fargas also argues that the government's backing probation's
suggestion that a stolen-firearm adjustment should apply and that
the amount of ammo could justify an upward variance worked a breach
of the agreement. We think not. Our read of the transcript
convinces us that the prosecutor simply answered the judge's
questions when asked — she didn't push for the adjustment and made
no bones that "we did not consider this as part of the plea
agreement" but that the government "will not go against the plea
agreement" and that "our recommendation will still maintain what
the plea agreement states." And she replied "[n]o" when defense
counsel asked — after a back-and-forth with the judge — about
whether the government was suggesting that the amount of ammo "is
a factor to upwardly vary." So what she said "did not cross the
line into forbidden terrain." See Almonte-Nuñez, 771 F.3d at 90.

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cases." See id. The very gist of Fargas's breach theory is that
even though the agreement let the parties request a sentence
anywhere from 57 to 71 months, and even though the government did
request 71 months, the prosecutor didn't tailor her "pitch[]" to
push back on probation's range of 70 to 87 months and so her
spotlighting certain aggravating facts to supposedly secure a
sentence at the "higher end" of the plea agreement's range
"effectively voiced support for a sentence at the high[] end" of
probation's range "and beyond." But he points to no plea-agreement
language obliging the prosecutor to adjust her "pitch[]" to
probation's suggested range in the way he claims she had to. And
he points to no binding authority finding a breach in the specific

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circumstances of his case.8 Which plainly won't do on plain-error
review. See, e.g., McCullock, 991 F.3d at 317.9
8 Fargas is wrong if he thinks United States v. Cortés-López,
101 F.4th 120 (1st Cir. 2024), fills that gap. Cortés-López held
that because the parties' joint recommendation of 24 months of
probation differed so drastically from probation's recommendation
of 78 to 97 months in prison, the government had to offer "some
minimal explanation" for "such a seemingly off-kilter, well-below
guidelines recommendation" — with its failure not to do so being
"tantamount to a repudiation of the [plea] agreement." Id. at
133. United States v. Acevedo-Osorio, 118 F.4th 117 (1st Cir.
2024) — another case Fargas relies on — is cut from similar cloth.
After noting that the parties jointly agreed to recommend 120
months in prison even though the guidelines prison range was 292
to 365 months, Acevedo-Osorio held that the government had to, but
didn't, give "at least a 'minimal explanation'" for "'such a
dramatic downward variation.'" See id. at 132 (quoting Cortés-
López, 101 F.4th at 132, 133); see also id. at 132-33 (stressing
that despite the glaring difference between the plea agreement and
the calculated sentencing range — the prosecution's proposal "was,
in raw terms, fourteen years less than the minimum sentence called
for by the [g]uidelines, and, in relative terms, less than half as
long" — the government's lack of explanation for such "a startingly
lenient" proposal left the "inevitably skeptical" judge in the
dark about "why, in the government's view, the sentence was
proper"). Fargas's situation — involving a plea agreement with a
proposed range of 57 to 71 months, a probation report with a
suggested range of 70 to 87 months, and a government request of 71
months — is, however, night-and-day different.
9 Fargas's reliance on United States v. Gonczy, 357 F.3d 50
(1st Cir. 2004), and cases inspired by Gonczy, doesn't help his
cause. The government there agreed to recommend a sentence at the
low end of the guidelines range. Id. at 51. The judge at
sentencing calculated a range of 70 to 87 months. Id. at 51. And
the prosecutor did recommend 70 months. Id. But after describing
how the defendant had (among other things) "ruined many lives,"
she argued that he "at a minimum deserves what the guidelines
provide for and those are his just des[s]erts." Id. at 53-54. In
other words, despite agreeing to endorse a low-end guidelines-
range sentence, the prosecutor argued that the entire guidelines
range — covering 17 months — represented the "minimum" amount of

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Because that's enough to decide the breach issue, we
needn't — indeed, mustn't — address any other breach-related
arguments. See United States v. Leach, 89 F.4th 189, 201 (1st
Cir. 2023) (noting that the panel "start[ed] — and end[ed]" — its
analysis "at the second step of [the plain-error] framework"
(emphasis added)); see also PDK Lab'ys Inc. v. DEA, 362 F.3d 786,
799 (D.C. Cir. 2004) (Roberts, J., concurring in part and
concurring in the judgment) (explaining that "if it is not
necessary to decide more, it is necessary not to decide more").
PROCEDURAL-REASONABLENESS CLAIMS
Next up is the procedural-reasonableness issue. For the
uninitiated, a sentence is procedurally unreasonable if the judge
miscalculated the guidelines range, didn't consider the relevant
§ 3553(a) factors, picked a sentence based on clearly erroneous
facts, or didn't adequately explain the ultimate choice. See,
e.g., Gall v. United States, 552 U.S. 38, 51 (2007).
New-Crime Sentence
Fargas offers lots of reasons why he thinks the upwardly
variant 120-months new-crime sentence isn't procedurally
time he deserved. Nothing like that happened here, however. Which
removes Fargas's case from Gonczy's compass.

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reasonable. But none of his complaints merits relief (we discuss
them in the order that makes sense to us).
Stolen Firearm
The judge applied a stolen-firearm enhancement after
probation indicated that one of Fargas's Glocks "was reported as
a stolen weapon" in the FBI's National Crime Information Center
(NCIC for short) database.10 See USSG § 2K2.1(b)(4)(A) (telling
judges to up the offense level by two if the defendant "possessed"
a "stolen" firearm).11 Fargas objected to that enhancement in the
district court, but on grounds entirely different from his
arguments on appeal.
Fargas protested below that he didn't know "about a
firearm being stolen" until probation filed its report. And from
there he insisted that he couldn't be "expos[ed]" to that
enhancement because the government hadn't proven that he had
"knowledge" of the firearm's "status" as "stolen" when he possessed
it (the defense told the judge that there's a "guidelines
commentary" that undercut the "argument" but that the "commentary
is contrary to the law"). His theory pivoted on a then-recent
Supreme Court case, Rehaif v. United States, 588 U.S. 225 (2019).
10 FBI of course is short for the Federal Bureau of
Investigation.
11 Again, remember that the judge used the 2021 version of the
sentencing guidelines.

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By way of background (and as Fargas's situation shows), convicted
felons can't possess firearms. See 18 U.S.C. § 922(g)(1). And
anyone who "knowingly violates" that ban may be imprisoned up to
10 years (the sentence Fargas got). See 18 U.S.C. § 924(a)(2)
(emphasis added). Construing these provisions, Rehaif held that
the government must prove not only that a defendant "knew he
possessed a firearm" — but that the defendant also knew "that he"
is a convicted felon "when he possessed it." See 588 U.S. at 227.
And Fargas said in his sentencing memo and at sentencing that
Rehaif's "logic" means he could only get the enhancement if
prosecutors showed that he knew the gun was stolen when he had it
(which, he continues, prosecutors never did).
Swapping out that argument for something new on appeal,
Fargas now faults the government for not proving that the NCIC
info was reliable enough to support the enhancement. See United
States v. Bryant, 571 F.3d 147, 155 (1st Cir. 2009) (ruling that
"it was simply not enough for the district court to have relied on
the government's recitation of the [NCIC and other database]
sources [about a prior conviction] cited in [probation's report]
without any additional inquiry into the reliability of these
sources").12 Tellingly, his appellate briefs never invoke Rehaif,
12 Discussing United States v. Parlor, 2 F.4th 807 (9th Cir.
2021) — after saying our Bryant opinion establishes binding
precedent on the issue — Fargas (responding to the government's

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despite the starring role Rehaif played below for him. Which helps
drive home how his knowledge-centric argument to the judge isn't
the same as his reliability-centric argument to us.
And that's a big deal. By débuting this reliability-
based claim on appeal, Fargas must run the plain-error gauntlet.
See, e.g., United States v. Soto-Soto, 855 F.3d 445, 448 n.1 (1st
Cir. 2017) (stating that "[t]o preserve a claim of error for
appellate review, an objection must be sufficiently specific to
call the district court's attention to the asserted error"). But
he doesn't tie his claim to that exacting standard. Which means
he's waived the claim. See, e.g., United States v. Cruz-Ramos,
987 F.3d 27, 40 (1st Cir. 2021).
brief) admits that other circuits have held that NCIC reports can
provide "[]sufficient evidence showing that [a] []gun was stolen,"
particularly where "the government's evidence was uncontroverted."
See id. at 814; see also United States v. Saunders, 572 F. App'x
816, 817-18 (11th Cir. 2014) (holding that "[t]he district court
did not clearly err in imposing the two-level enhancement for a
stolen firearm" because the NCIC reports (which included "the
firearms' serial numbers") had "sufficient indicia of reliability
to support the probable accuracy of the fact that at least one of
[defendant's] firearms was reported stolen" — and also ruling that
the lower court "did not plainly err by failing to make explicit
findings of fact regarding the reports' reliability" because
(among other things) "NCIC reports are generally recognized as
reliable, making the reliability of the evidence apparent from the
record"). He tries to downplay these decisions by, for example,
claiming they "contain[] virtually no analysis." But for present
purposes none of this matters: given that we (spoiler alert) are
about to rule against Fargas on waiver, we leave for another day
(without expressing our view) the knotty question of the NCIC's
reliability.

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Status Points
Fargas writes that after his sentencing the federal
sentencing commission retroactively amended the guidelines to
"eliminate[] the two '[s]tatus [p]oints'" that elevated his
criminal-history score. See USSG Supp. to App. C, Amend. 821 at
234-36 (Nov. 1, 2023); USSG Supp. to App. C, Amend. 825 at 260-61
(Nov. 1, 2023).13 And he asks us to remand his case for
resentencing under this amended provision. But "[t]he remedy for
a defendant who seeks resentencing under a retroactive
guideline[s] amendment is to file a motion in the district court."
United States v. Jones, 778 F.3d 375, 390 (1st Cir. 2015). So we
reject his invite without prejudice to his "right to file a motion
in the district court seeking this relief." See id.
Explanation
Pushing a preserved argument, Fargas claims that the
judge inadequately explained the upward variance — a type of issue
13 The sentencing commission, by the way, is "a nonelected
body within the judicial branch" that "continually update[s]" the
guidelines to encourage "'better sentencing practices' and
'uniformity in the sentencing process.'" See United States v.
Flores-González, 86 F.4th 399, 419, 423 n.13 (1st Cir. 2023)
(equally divided en banc court) (Thompson, joined by Barron, C.J.,
and Montecalvo, J.) (quoting United States v. Booker, 543 U.S.
220, 263 (2005)), cert. denied, No. 23-7165, 2024 WL 4426725 (U.S.
Oct. 7, 2024).

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familiar to us from other sentencing cases (though one that's not
always easy to resolve despite being familiar).
Some legal rules of thumb. A judge must explain "in
open court the reasons for [the] imposition of [a] particular
sentence." 18 U.S.C. § 3553(c). But the explanation's adequacy
depends (unsurprisingly) on the case's complexity. See, e.g.,
Rita, 551 U.S. at 356 (observing that "[t]he appropriateness of
brevity or length, conciseness or detail, when to write, what to
say, depends upon circumstances"). The judge "should set forth
enough to satisfy [us] that he has considered the parties'
arguments and has a reasoned basis for exercising his own legal
decisionmaking authority." See id.; see also Gall, 552 U.S. at 50
(remarking that a judge "must adequately explain the chosen
sentence to allow for meaningful appellate review and to promote
the perception of fair sentencing"). "Sometimes the circumstances
will call for a brief explanation; sometimes they will call for a
lengthier explanation," Rita, 551 U.S. at 357 — an above-guidelines
sentence (which we have here) requires more of an explanation than
a within-guidelines sentence, for instance, see Gall, 552 U.S. at
50. And sometimes the "context and the record" clarify the reasons
underlying the judge's decision. See Rita, 551 U.S. at 357, 359.
Last (but hardly least), a judge using factors already included in
a guidelines range to impose an outside-the-range sentence must

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say what makes those factors worthy of extra weight. See, e.g.,
United States v. Leach, 89 F.4th 189, 197 (1st Cir. 2023).
Now on to what Fargas's judge said. Having read the key
papers (Fargas's memo, probation's report, and Fargas's objections
to that report), and having then heard counsel's concerns in
person, the judge ruled that only an above-guidelines sentence
could advance just punishment, deterrence, public protection, and
respect for the law — each a § 3553(a) factor (see our footnote 3)
"that help[s] guide" a judge's sentencing "discretion." See United
States v. Tanco-Pizarro, 892 F.3d 472, 476 (1st Cir. 2018). Noting
that he knew "few weapons . . . more dangerous" than a machinegun,
the judge tied his choice to case-specific matters — specifically
stressing how Fargas possessed 2 machineguns (the modified Glock
pistols), plus 1 AK-47 pistol, plus 1 drum magazine, plus 6 high-
capacity magazines, plus 173 rounds of ammo (in different calibers)
only "three months" after leaving prison on supervised release for
another machinegun-possession crime (emphasis in quoted part
ours).14
14 Fargas (recall) began his supervised release for the
earlier gun crime in November 2021 and committed the current gun
crime in January 2022. So it seems the judge got "three months"
by counting November 2021 as month #1, December 2021 as month #2,
and January 2022 as month #3.

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A disappointed Fargas criticizes the judge for not
saying why he based the above-guidelines sentence on factors —
guns, ammo, and new crime done during supervised release — already
(supposedly) included in the guidelines calculus. The criticism
misses the mark, however. USSG § 2K2.1(a)(3) — which sets the
base-offense level — contemplates possession of just 1 machinegun.
USSG § 2K2.1(b)(1)(A) — which enhanced that level — contemplates
a bunch of "firearms," not (as here) a bunch of machineguns. See
United States v. Ortiz-Vidot, No. 20-1719, 2021 WL 5863422, at *3
(1st Cir. Dec. 10, 2021). And neither provision "account[s] for
. . . substantial quantities of ammunition" or "multiple high-
capacity magazines." See United States v. Bruno-Campos, 978 F.3d
801, 806 (1st Cir. 2020); see also United States v. Díaz-Lugo, 963
F.3d 145, 156 (1st Cir. 2020) (affirming an above-guidelines
sentence where the relevant guideline accounted for only 1 of
defendant's 2 guns and none of his 4 high-capacity magazines).15
15 Leaving no argument unturned, Fargas claims that because
having a gun usually involves having bullets and magazines, it's
fair to expect that a defendant in a typical illegal-gun possession
case will have some ammo and magazines too. True enough. See
United States v. Rivera-Berríos, 968 F.3d 130, 133, 135 (1st Cir.
2020) (holding that possessing 36 rounds of ammo and 2 high-
capacity magazines "was entirely consistent with simple possession
of a machine gun"). But case facts "may be deemed atypical, and
therefore support an above-guideline[s] sentence, when a defendant
possesses significantly more ammunition or magazines than in a
typical case." United States v. Rosario-Merced, 109 F.4th 77, 83
(1st Cir. 2024). And while judges shouldn't pick sentences "just
by counting bullets," see id., the problem for Fargas is that we've

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On top of that USSG §§ 4A1.1(d) and 7B1.4(a) — which (respectively)
added the criminal-history status points to Fargas's new-crime
sentence and provided the range for his revocation sentence — don't
account for his committing another gun crime so soon after his
prison release, "facts [that] remove [his] case from the heartland
of the applicable guideline[s] provisions." See Díaz-Lugo, 963
F.3d at 155.16
affirmed above-guidelines terms for defendants possessing less
ammo than he possessed (that is, lower amounts sufficed for the
upward variances), see United States v. Rivera-Santiago, 919 F.3d
82, 83, 85-86 (1st Cir. 2019) (ruling that possessing 127 rounds
of ammo and 5 magazines (2 of which were high-capacity)
"differentiate[d]" the defendant's crime from the typical "felon-
in-possession offense contemplated by the guidelines"); see also
Rosario-Merced, 109 F.4th at 84 (collecting similar cases). Fargas
seems to wish the law were otherwise. But like all three-judge
panels, we are bound by the law as it is. See, e.g., San Juan
Cable LLC v. P.R. Tel. Co., 612 F.3d 25, 33 (1st Cir. 2010).
16 As for Fargas's claim that the judge gave "no explanation"
for why the short time between the release and the new offense
mattered, we say this. The judge focused laser-like on how Fargas
did the same kind of crime as before just "three months" after his
release. See United States v. Pedroza-Orengo, 817 F.3d 829, 834
(1st Cir. 2016) (affirming an above-guidelines sentence for a
firearms crime where the judge "highlighted the fact that [the
defendant] had committed the instant offense within a year of his
release from incarceration for a prior firearms offense"). And
the judge's comments came on the heels of his mentioning how the
sentence must mirror the gravity of the crime plus support fair
punishment, deterrence, public safety, and respect for the law —
thus linking Fargas's case to sentencing's goals. See United
States v. Vargas-García, 794 F.3d 162, 166 (1st Cir. 2015) (ruling
that "[w]here the record permits a reviewing court to identify
both a discrete aspect of an offender's conduct and a connection
between that behavior and the aims of sentencing, the sentence is
sufficiently explained to pass muster under [§] 3553(c)" (quoting
United States v. Fernández-Cabrera, 625 F.3d 48, 54 (1st Cir.

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What we've said also distinguishes Fargas's case from
cases like Rivera-Berríos. As "the driving force behind [an]
upward variance," the judge there seemingly "relied on nothing
beyond the mere fact that the offense of conviction involved a
machine gun," see 968 F.3d at 135 — that is, he zeroed in on no
"special characteristic attributable either to the offender or to
the offense of conviction" that "remove[d]" the "case from the
mine-run" of cases covered by the guidelines, see id. at 137. But
by "consider[ing]" Fargas's "machinegun possession . . . alongside
other, case-specific factors" — as the preceding two paragraphs
show — the judge here avoided the kind of reversible error present
there (despite Fargas's contrary view). See United States v.
Polaco-Hance, 103 F.4th 95, 101 (1st Cir. 2024) (emphasis added);
see also United States v. Carmona-Alomar, 109 F.4th 60, 75 (1st
Cir. 2024).
2010))); see also United States v. Gonzalez-Flores, 988 F.3d 100,
102 (1st Cir. 2021) (holding that the defendant's "previous crimes"
and "troubling patterns" — including "weapons involvement," for
instance — indicate that "sentencing factors, like public
protection and deterrence, point in favor of a longer sentence").

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Unsupported Speculation
Moving on, Fargas (emphasis ours) brings up the judge's
sentencing comment — made while discussing the seriousness of the
crime — that
[a]fter a short pursuit, Mr. Fargas put his
arms out of the passenger side window and the
vehicle came to a stop and Mr. Fargas stepped
out of the vehicle, leaving his girlfriend,
the two minors in the vehicle, with the
weapons, the ammunition, and the magazines, in
what appears to be a veiled attempt not to be
charged with firearms possession.
According to Fargas, no "reliable record evidence" supports the
judge's "veiled attempt" conclusion. But even assuming he
preserved the issue, his argument fails because any error — if
error there was (and we don't suggest there was) — is harmless.
See, e.g., United States v. Tavares, 705 F.3d 4, 26-27 (1st Cir.
2013) (pointing out that "[a]n error is harmless if it 'did not
affect the district court's selection of the sentence imposed'"
(quoting Williams v. United States, 503 U.S. 193, 203 (1992))).
The transcript shows that what propelled Fargas's sentence was his
possessing 2 machineguns, 1 AK-47 pistol, and 173 rounds of
different-caliber ammo mere months into a supervised-release term
for an earlier machinegun-possession crime. If more were needed,
the judge's written "statement of reasons" also jibes with his
sentencing remarks. See United States v. Martin, 520 F.3d 87, 93
(1st Cir. 2008) (signaling that we can consider the judge's

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"written statement of reasons" as part of our reasonableness
review). This means the record doesn't indicate that the judge's
veiled-attempt comment even "arguably affected the sentence." See
United States v. Graham, 976 F.3d 59, 62 (1st Cir. 2020) (quoting
United States v. Alphas, 785 F.3d 775, 780 (1st Cir. 2015)). Which
is why we put this in the harmless category. See id.
Disparity
Fargas makes one last procedural-reasonableness
challenge. Hyping another preserved argument, he insists that his
120-months above-guidelines sentence produced an unwarranted
sentencing disparity compared with girlfriend Herrera's 37-months
within-guidelines sentence (the need to sidestep unjustified
sentencing disparities is a § 3553(a) concern (see our footnote
3)). As he tells it, the record "reveal[s]" no reason for treating
him more harshly than Herrera. To get anywhere, he needs to
present a true apples-to-apples comparison. See, e.g., United
States v. Bedini, 861 F.3d 10, 21 (1st Cir. 2017). But this he
can't do because, for example (and as the government notes without
correction), Herrera "was subject to a lower applicable
[g]uidelines sentencing range" than he was. See id.; see generally
United States v. Rivera-Gonzalez, 626 F.3d 639, 648 (1st Cir. 2010)
(underscoring that "[u]nless two 'identically situated defendants'
receive different sentences from the same judge, which may be a

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reason for concern, our general rule of thumb is that a 'defendant
is not entitled to a lighter sentence merely because his co-
defendant[] received [a] lighter sentence[]'" (citation omitted
and emphasis added) (quoting United States v. Wallace, 573 F.3d
82, 97 (1st Cir. 2009))). Fargas — unlike Herrera — did his crimes
while on supervised release (conceding at sentencing "that
responsibility is different between defendants in this case,"
Fargas's counsel noted that Herrera is "a first offender"). See
United States v. Cordero-Velázquez, No. 21-1956, 2024 WL 5198576,
at *9 (1st Cir. Dec. 23, 2024) (holding that the co-defendants
weren't proper comparators where (among other reasons) the
appellant "was a prohibited person under the guidelines" — and so
subject to a higher offense level — and his co-defendant wasn't).
And despite what he seemingly believes, United States v. Robles-
Alvarez, 874 F.3d 46 (1st Cir. 2017), doesn't help him, for a
simple reason: because he and she aren't "fair congeners," see
United States v. Rivera-Morales, 961 F.3d 1, 20 (1st Cir. 2020),
he hasn't presented even a "potentially forceful" disparity
argument that might require reversal, see id. (distinguishing —
after quoting — Robles-Alvarez on a similar basis).
Revocation Sentence
Fargas's opening brief might be read as trying to contest
the procedural reasonableness of his revocation sentence as well,

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seeing how in a few spots he blames the judge of not passably
explaining the "two upwardly variant sentences" (emphasis ours).
But he never develops those casual remarks, thus waiving any
argument he might have had, see, e.g., United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990) — a point the government made in
its answering brief, without any contradiction from Fargas in his
reply brief.
SUBSTANTIVE-REASONABLENESS CLAIMS
Last up is the substantive-reasonableness issue. For
the legal novices out there, a sentence is substantively
unreasonable if the judge acted too harshly given the "totality of
the circumstances." See Gall, 552 U.S. at 51. But because there's
more than one reasonable sentence in just about every case,
reversal will result only if the term falls outside the vast
"universe of reasonable sentencing outcomes." See United States
v. Bermúdez-Meléndez, 827 F.3d 160, 167 (1st Cir. 2016); see also
Tanco-Pizarro, 892 F.3d at 483 (explaining that a sentence is
substantively reasonable if the judge's "reasoning is plausible
and the result is defensible").
New-Crime Sentence
Starting with the 120-months new-crime sentence,
Fargas's preserved arguments basically mimic his just-rebuffed
procedural-reasonableness claims (that the judge inadequately

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explained the sentence, for example, and created an unwarranted
disparity between Fargas's sentence and Herrera's). But these
claims fare no better repackaged as substantive-reasonableness
issues. See United States v. Tosi, 897 F.3d 12, 15 (1st Cir. 2018)
(rejecting substantive-reasonableness arguments that "essentially
rehash [defendant's] already-rejected procedural-reasonableness
claims"); see also United States v. Rodríguez-Torres, 939 F.3d 16,
43 (1st Cir. 2019) (similar).
Revocation Sentence
As for the 24-months revocation sentence, Fargas's
opening brief's "statement of the case" section says that he
objected below to the "substantive reasonableness" of that term.
But he waived any argument he might have had by not briefing the
issue "in [his] brief's argument section." See Britto v. Prospect
Chartercare SJHSRI, LLC, 909 F.3d 506, 514 (1st Cir. 2018); see
also Bos. Exec. Helicopters, LLC v. Maguire, 45 F.4th 506, 520
(1st Cir. 2022).
FINAL WORDS
We affirm Fargas's sentences, but without prejudice to
his right to seek resentencing on the new crime under the guideline
amendment discussed above.

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