Upward Variances for Firearms “Firepower” Beyond the Guidelines and No Plea Breach When Government Defends the Sentence on Appeal

I. Introduction

In United States v. Maldonado-Velazquez (1st Cir. Jan. 16, 2026), the First Circuit affirmed a 96-month sentence imposed on Onic Maldonado-Velazquez after he pleaded guilty to possessing machine guns (18 U.S.C. §§ 922(o), 924(a)(2)) and being a felon in possession (18 U.S.C. §§ 922(g)(l), 924(a)(8)).

The advisory Guidelines range was 63–78 months, but the district court varied upward by 18 months. Maldonado challenged the sentence as both procedurally and substantively unreasonable, arguing the court did not adequately explain the variance, relied on an implausible rationale, and failed to properly weigh mitigating evidence (including mental health improvement). He also argued the government breached the plea agreement by defending the above-Guidelines sentence on appeal.

The core issues were: (1) what a sentencing judge must explain to justify an upward variance in a firearms case; (2) when ammunition quantity, magazines, multiple machine guns, supervised-release status, and the manner of possession remove a case from the Guidelines’ “heartland”; and (3) whether a plea term limiting sentencing recommendations also limits the government’s position on appeal.

II. Summary of the Opinion

The First Circuit held the sentence was procedurally reasonable because the district court identified case-specific facts supporting the upward variance and explained why those facts justified a higher sentence under 18 U.S.C. § 3553(a). It was also substantively reasonable because the court articulated a plausible rationale and reached a defensible result within the broad universe of reasonable outcomes.

The panel emphasized that a machine gun’s inherent dangerousness cannot, by itself, justify an upward variance, but it can be considered alongside individualized aggravators—here including (i) 279 rounds of ammunition, (ii) 10 magazines (including 7 high-capacity), (iii) multiple machine guns plus a micro-conversion kit, (iv) commission of the offense while on supervised release for a prior firearm offense, and (v) being “actively surveilling the rooftop” rather than merely storing weapons.

Finally, the court rejected the plea-breach claim, concluding the agreement’s language constrained only the parties’ recommendations at sentencing, not the government’s ability to defend the judgment on appeal.

III. Analysis

A. Precedents Cited

1. Framework: appellate review, preservation, and bifurcated reasonableness

• United States v. Flores-Quiñones and United States v. Reyes-Torres: Established the “bifurcated” approach—procedural reasonableness first, then substantive reasonableness.
• United States v. Cruz-Ramos: Clarified standards of review—preserved claims are reviewed for abuse of discretion; unpreserved claims for plain error.
• United States v. Cordero-Velázquez and United States v. Reyes-Correa: Addressed what is required to preserve procedural sentencing objections (must be specific enough to alert the court).
• United States v. Polaco-Hance, United States v. Melendez-Hiraldo: Recognized that advocating for a shorter sentence can preserve a substantive reasonableness challenge.

2. Explaining upward variances: what must the district court say?

• United States v. Pupo and United States v. Díaz-Rivera: A sentencing court commits procedural error if it fails to adequately explain a deviation from the Guidelines.
• United States v. Flores-Nater and United States v. Muñoz-Fontanez: When varying upward, the court must identify the specific facts that motivated the variance and why they justify it.
• United States v. Valle-Colón and United States v. Díaz-Lugo: Variances should be grounded in factors not adequately accounted for by the Guidelines.
• United States v. Montero-Montero: The explanation can be explicit or fairly inferred from the sentencing record.

3. Firearms “firepower” and the Guidelines’ “heartland”

• United States v. Polaco-Hance: Key limitation and permission: machine guns are dangerous, but that dangerousness alone cannot justify an upward variance; it may be emphasized alongside other individualized factors such as ammunition cache and high-capacity magazines.
• United States v. Fargas-Reyes: Supported upward variances where defendants possessed multiple machine guns and large ammunition quantities, particularly when also on supervised release for similar conduct.
• United States v. Mercado-Cañizares: Reaffirmed that ammunition quantity and extended magazines can support an upward variance in firearms offenses.
• United States v. Bruno-Campos: Explained that substantial quantities of ammunition and/or multiple high-capacity magazines can remove a case from the Guidelines “heartland.”
• United States v. García-Mojica: Approved considering “extra ammunition” as aggravating because it increased the “lethalness” and was not contemplated by the guideline.
• United States v. Rosario-Merced and United States v. Morales-Veléz: Distinguished “simple possession” quantities from unusually large quantities that the Guidelines do not account for.
• United States v. Rivera-Santiago: Treated commission of a similar firearms offense while on supervised release as a “run-of-the-mill” differentiator justifying a variance.
• United States v. Rivera-Berríos: Provided a contrast point—possession of 36 rounds and 2 magazines was “entirely consistent with simple possession,” underscoring why 279 rounds and 10 magazines here could be treated as atypical.
• United States v. Waithe: Reinforced that identifying factors not captured by the Guidelines range supports variance reasoning.

4. Substantive reasonableness: “plausible rationale” and “defensible result”

• United States v. Contreras-Delgado: Emphasized deference to sentencing courts.
• United States v. Burgos and United States v. Rivera-Morales: Framed the “universe of reasonable sentencing outcomes” and the appellate court’s limited role.
• United States v. Colón-De Jesús and United States v. De Jesús-Torres: Provided the operative test—plausible rationale and defensible result.
• United States v. Martin, United States v. Guzman-Fernandez: Required that above-range variances be justified in magnitude and tied to offense/offender characteristics, with specificity as to how the defendant differs from the ordinary Guidelines case.

5. Weighing mitigating factors: discretion and appellate restraint

• United States v. Santiago-Lozada and United States v. Caballero-Vázquez: Confirmed sentencing judges may give greater weight to certain § 3553(a) factors over others.
• Gall v. United States: Referenced for the procedural/substantive boundary and the role of appellate review.
• United States v. Serrano-Delgado: A sentence is not unreasonable because the court declined to assign the mitigating factors the weight the defendant preferred.
• United States v. González-Rodríguez and United States v. Santiago-Rivera: Approved sentences where the court engaged with mitigating and aggravating considerations and explained its weighting.
• United States v. Santa-Soler: Supported the inference that unmentioned mitigating claims were considered but found unpersuasive.
• United States v. Vargas-García: Reinforced that the appellate court does not substitute its judgment for the sentencing court’s.

6. Plea agreements: scope of promises and appellate defense

• United States v. Jurado-Nazario: Addressed preservation timing (“earliest point when it was logical to do so”).
• United States v. Fargas-Reyes: Reiterated plea agreements are interpreted like contracts.
• United States v. Flores-Nater: Central to the plea-breach holding: a natural reading of a sentencing-recommendation clause limits what happens “at sentencing,” and absent an express term, the government is not barred from defending the sentence on appeal—especially where the agreement expressly restricts the defendant’s appeal rights but not the government’s.
• United States v. Rodríguez-Reyes: Confirmed the district court is not bound by the parties’ sentencing recommendations, and choosing a different sentence is not error.

B. Legal Reasoning

1. The court separated procedural and substantive review and assumed (without deciding) that abuse-of-discretion review applied because the sentence would be affirmed even under that more defendant-friendly posture.
2. Procedural reasonableness: The sentencing judge adequately explained the variance by pointing to concrete, individualized facts and explaining their § 3553(a) significance. Critically, the judge did not rely solely on the generic dangerousness of machine guns (forbidden as a standalone basis under Polaco-Hance), but treated it as one piece of a broader factual mosaic.
3. Guidelines “gap” reasoning: The panel underscored that U.S.S.G. § 2K2.1(a)(4)(B) considers firearm type and prohibited status, but not the amount of ammunition; and the enhancements applied here did not capture ammunition quantity. That mismatch allowed ammunition volume and magazine count to function as “not adequately accounted for” aggravators supporting a variance.
4. Heartland and differentiation: The court treated (i) 279 rounds and numerous magazines, (ii) multiple machine guns, (iii) commission while on supervised release for a similar firearms offense, and (iv) “actively surveilling” a public-housing rooftop as features that differentiate this case from the ordinary § 2K2.1 case.
5. Substantive reasonableness: The 18-month variance (about 20% above the top of the range) was held defensible, given the aggravating facts and the stated goals of seriousness, respect for law, public protection, deterrence, and punishment. The panel framed this as well within the “universe” of reasonable outcomes.
6. Mitigation and mental health: The district court’s record showed it considered the defendant’s background and mental health improvements and expressly acknowledged “positive changes,” but permissibly assigned greater weight to the public-safety and deterrence concerns.
7. Plea agreement: The panel applied contract-like interpretation and concluded that a clause barring above-/below-Guidelines “recommendations” governs sentencing advocacy in the district court, not appellate litigation. The presence of an express restriction on the defendant’s appeal rights (and no parallel restriction on the government) strengthened that reading.

C. Impact

• Firearms sentencing (especially in machine-gun cases): The decision consolidates a practical roadmap for upward variances: courts may treat unusually large ammunition quantities, multiple high-capacity magazines, possession of multiple machine guns, supervised-release recidivism, and threatening context (e.g., “actively surveilling”) as factors that move a case outside the Guidelines’ heartland.
• “Machine gun dangerousness” is constrained but not irrelevant: The opinion reinforces that generic dangerousness cannot do all the work, but it may remain rhetorically and analytically powerful when tethered to individualized aggravators.
• Plea bargaining: The plea-breach holding signals that if defendants want the government barred from defending an above-Guidelines sentence on appeal, the agreement likely must say so expressly. Drafters may respond by clarifying whether recommendation clauses apply only “at sentencing” or also in appellate defense.
• Appellate posture: The case reflects continued deference to sentencing judges where the record shows a specific, fact-based explanation and a § 3553(a)-anchored rationale.

IV. Complex Concepts Simplified

• Guidelines range: The advisory sentencing range calculated under the U.S. Sentencing Guidelines based on offense level and criminal history.
• Upward variance (vs. departure): A “variance” is a sentence outside the Guidelines range based on the judge’s application of 18 U.S.C. § 3553(a). (A “departure” is an adjustment authorized by the Guidelines themselves.) This case concerns an upward variance.
• Procedural reasonableness: Whether the court followed the right steps—correct calculation, consideration of § 3553(a), and adequate explanation—especially when varying from the Guidelines.
• Substantive reasonableness: Whether the final sentence length is defensible given the facts and § 3553(a), acknowledging that many different sentences can be “reasonable.”
• “Heartland”: The typical or ordinary set of facts the Guidelines are designed to cover. If facts make a case atypically severe (like unusually large ammunition quantities), a court may treat it as outside the heartland.
• Supervised release: A monitoring period after prison; committing a similar offense during supervised release can indicate heightened recidivism risk and need for deterrence.
• Allocution: The defendant’s chance to speak directly to the judge before sentencing.

V. Conclusion

United States v. Maldonado-Velazquez affirms that a sentencing court can justify an above-Guidelines sentence in a firearms case by identifying aggravating, case-specific facts that the Guidelines do not adequately capture—particularly large ammunition quantities, numerous (and high-capacity) magazines, multiple machine guns, supervised-release recidivism, and threatening possession context. The First Circuit also reinforces a plea-agreement principle with practical consequences: absent express language, a promise to recommend a within-Guidelines sentence at sentencing does not bar the government from defending an above-Guidelines sentence on appeal.