First Circuit: Upward Variance Cannot Rest on 31 Rounds of Ammunition or Unsupported “Firearms of War” Facts

Introduction

In United States v. Rosa-Borges, the First Circuit revisited two sentences imposed on Reynaldo Rosa-Borges after a prior remand. Rosa had been sentenced for a new felon-in-possession conviction under 18 U.S.C. § 922(g)(1) and for violating supervised release from an earlier firearms conviction.

The central issue was whether the district court properly justified an above-Guidelines sentence for the new § 922(g)(1) conviction. The First Circuit held that it did not. The court concluded that the district court relied on an invalid sentencing rationale when it treated 31 rounds of ammunition as a “high amount” and referenced unsupported facts about ammunition used by NATO countries for “firearms of war.”

The court vacated the § 922(g)(1) sentence and remanded for resentencing before a different judge. However, it affirmed the revocation sentence because Rosa waived his appellate challenges to that sentence.

Summary of the Opinion

  • § 922(g)(1) sentence vacated: The district court procedurally erred by relying on legally invalid and unsupported grounds to impose an upward variance.
  • 31 rounds of ammunition insufficient: Under First Circuit precedent, 31 rounds is not enough, standing alone, to remove a firearms-possession case from the ordinary “mine-run.”
  • Unsupported ammunition characterization rejected: The district court’s statement that the ammunition was the type used by NATO countries for “firearms of war” lacked record support and was clearly erroneous.
  • Error not harmless: Because the sentencing court relied on “all” its stated rationales, the First Circuit could not say the same sentence would inevitably have been imposed without the invalid rationale.
  • Remand to different judge: Because the court relied on extra-record facts without notice, resentencing was ordered before a different judge.
  • Revocation sentence affirmed: Rosa’s challenges to the supervised-release revocation sentence were deemed waived due to inadequate preservation and briefing.

Analysis

Precedents Cited

1. Prior appeal and mandate rule

United States v. Rosa-Borges (Rosa I) was the controlling prior decision. In that case, the First Circuit held that Rosa’s brother’s statement attributing 100 rounds of ammunition to Rosa was unreliable hearsay. The district court could not rely on that statement at sentencing. In the present appeal, Rosa argued that the district court violated the mandate by refusing to delete the relevant PSR paragraph. The First Circuit disagreed: Rosa I prohibited reliance on the unreliable hearsay, but it did not require deletion of the paragraph from the PSR.

United States v. Cheveres-Morales, United States v. Dávila-Félix, United States v. Genao-Sánchez, and United States v. Connell supplied the governing framework for the mandate rule. These cases establish that a district court must follow both the letter and spirit of an appellate mandate on remand.

United States v. Matthews confirmed that application of the law-of-the-case doctrine is reviewed de novo. United States v. Acevedo-Osorio supported the proposition that a district court need not agree with the PSR, reinforcing the distinction between retaining a PSR paragraph and relying on it.

2. Standards of review and waiver

United States v. Aponte-Colón, United States v. Sierra-Jiménez, and United States v. Carrasquillo-Vilches provided the abuse-of-discretion framework for preserved sentencing challenges, including clear-error review for facts and de novo review for legal questions.

United States v. Morales-Ortiz, United States v. Cheveres-Morales, and United States v. Duarte explained plain-error review for unpreserved claims. United States v. Burgos-Balbuena allowed the court to bypass a waiver dispute where the claim would fail even under plain-error review.

For briefing waiver, the court relied on United States v. Cordero-Velázquez, United States v. Muñoz-Gonzalez, and United States v. Zannino. These cases underscore that undeveloped arguments, or arguments that fail to address the applicable standard of review, may be deemed waived.

3. Upward variances and ammunition quantity

The key substantive sentencing precedents were United States v. Rivera-Berríos, United States v. Morales-Vélez, and United States v. Rivera-Santiago.

United States v. Rivera-Berríos was especially important. There, the First Circuit held that 36 rounds of ammunition were not a “large cache” and were consistent with simple possession. Applying that reasoning, the court held that Rosa’s 31 rounds likewise could not justify an upward variance as a “high amount” of ammunition.

United States v. Morales-Vélez and United States v. Rivera-Santiago recognize that ammunition quantity can be aggravating when it exceeds what is consistent with simple possession. But those cases also confirm that the sentencing court must point to facts showing why the amount is extraordinary. That showing was missing here.

4. Unsupported factual findings at sentencing

United States v. Cotto-Negrón supported the conclusion that a sentencing finding is clearly erroneous when there is no basis in the record. The district court’s statement about NATO ammunition and “firearms of war” lacked record support.

United States v. Ramos-Carreras and United States v. Craven influenced the remedy. Those cases disapprove reliance on extra-record or non-adversarial information at sentencing. Because the district court relied on non-record facts without notice, the First Circuit ordered resentencing before a different judge.

5. Harmless error

Williams v. United States, United States v. Tavares, and United States v. Diaz governed harmless-error analysis. The First Circuit asked whether the district court would inevitably have imposed the same sentence without the invalid rationale. Because the district court expressly relied on “all” its stated reasons, the error was not harmless.

6. Plea agreement and revocation cases

United States v. Kurkculer and United States v. Clark concerned remedies for plea-agreement breaches, including resentencing before a different judge. The First Circuit did not decide Rosa’s breach claim because it had already granted the same remedy on other grounds.

United States v. Colón-Maldonado explained the grading framework for supervised-release violations. United States v. Alejandro-Rosado supported applying plain-error review to unpreserved revocation-sentencing claims. United States v. Mercado-Cañizares clarified that objections must be specific enough to alert the district court to the alleged procedural error.

Legal Reasoning

The First Circuit separated two questions: whether the district court violated the prior mandate, and whether the new sentence was procedurally reasonable.

On the mandate issue, the court held that the district court did not have to delete the challenged PSR paragraph. The appellate mandate in Rosa I barred reliance on unreliable hearsay; it did not require physically striking the paragraph. The district court stated that it considered only the 31 rounds associated with the § 922(g)(1) offense, not the additional 100 rounds deemed unreliable in the first appeal.

But the sentence still failed. A sentencing court may vary upward from the Guidelines when a case differs meaningfully from the ordinary case. Here, the district court relied partly on the supposed “high amount” of ammunition. First Circuit precedent made clear that 31 rounds is not extraordinary enough to justify an upward variance. The court also relied on an unsupported characterization of the ammunition as suitable for NATO “firearms of war.” Because the record did not support that assertion, the finding was clearly erroneous.

The First Circuit then considered harmlessness. It could not conclude that the district court would inevitably have imposed the same 60-month sentence based only on the remaining rationales. The district court’s own words showed that it relied on all the stated factors together. Therefore, vacatur was required.

Impact

This opinion reinforces several important sentencing principles in the First Circuit:

  • Ammunition quantity must actually be extraordinary: Ordinary amounts, such as 31 rounds, cannot be relabeled as aggravating without more.
  • Sentencing facts must be in the record: Courts may not rely on technical or inflammatory characterizations, such as “firearms of war,” unless supported by evidence.
  • Unreliable information is off limits: The government may not argue that unreliable information can be considered so long as it is not the sole basis for a sentence.
  • Harmless-error review has teeth: If an invalid rationale forms part of the sentencing package, the sentence may be vacated.
  • Appellate briefing matters: Challenges to revocation sentences can be lost if not preserved and developed under the correct standard of review.

Complex Concepts Simplified

Upward variance: A sentence above the advisory Guidelines range. A judge may impose one, but must explain why the case is more serious than the ordinary case covered by the Guidelines.

Mine-run case: A typical or ordinary case. To justify an upward variance, a court often must identify what makes the case meaningfully different from the mine-run.

Mandate rule: When an appellate court sends a case back, the district court must follow what the appellate court decided. Here, the mandate barred reliance on unreliable hearsay, but did not require deletion of the PSR paragraph.

Harmless error: An error that does not require reversal because it did not affect the outcome. The error here was not harmless because the invalid ammunition rationale may have influenced the sentence.

Plain error: A demanding form of review used when a party failed to properly object in the trial court. Rosa’s revocation arguments failed largely because they were not preserved or adequately briefed.

Conclusion

The First Circuit’s decision is a significant sentencing ruling. It confirms that a district court cannot impose an above-Guidelines firearms sentence based on a routine amount of ammunition or unsupported technical claims about the ammunition’s military character. Sentencing must be individualized, evidence-based, and grounded in reliable record facts.

The court vacated Rosa’s § 922(g)(1) sentence and ordered resentencing before a different judge. At the same time, it affirmed the revocation sentence because Rosa waived his challenges. The opinion therefore stands as both a constraint on unsupported upward variances and a reminder that appellate claims must be carefully preserved and briefed.