Not for Publication in West's Federal Reporter

          United States Court of Appeals
                       For the First Circuit

No. 15-1756

                     UNITED STATES OF AMERICA,

                                Appellee,

                                     v.

                         ISAIAH DAVIS-TORRES,

                        Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. José Antonio Fusté, U.S. District Judge]


                                  Before

                    Kayatta, Stahl, and Barron,
                          Circuit Judges.


     Eric Alexander Vos, Federal Public Defender, District of
Puerto Rico, Vivianne M. Marrero, Assistant Federal Public
Defender, Supervisor, Appeals Section, and Eleonora C. Marranzini,
Research and Writing Specialist, on brief for appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Thomas F. Klumper, Assistant United States Attorney,
Senior Appellate Counsel, on brief for appellee.


                          September 21, 2016
             STAHL, Circuit Judge.       Appellant Isaiah Davis-Torres

pled guilty to one count of being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1).            The maximum

statutory penalty for the offense was a term of imprisonment of

ten years.    In the plea agreement, the parties agreed to recommend

the lower end of the applicable guideline sentence range of 27 to

33 months imprisonment.     The agreement also stipulated that the

sentencing decision was within the discretion of the District

Court, and included an appellate waiver.1

             At the sentencing hearing, the District Court imposed a

term of imprisonment of 60 months.       Davis now appeals, arguing 1)

that the government breached the plea agreement, and 2) that the

sentence was procedurally and substantively unreasonable.      Finding

no ground for either claim, we AFFIRM.

                        I. Facts & Background2

             Davis was arrested on December 18, 2014, in Guayama,

Puerto Rico, and charged with possession of a firearm.      During the

course of the arrest, Puerto Rico Police Department ("PRPD") agents

confiscated a Romarm AK-47 type rifle, 109 rounds of ammunition,



     1 The parties agree that the waiver does not bar the instant
appeal in light of Davis's sentence exceeding the parties' jointly
stipulated range.
     2 As this appeal follows a guilty plea, we recount the facts
as established by the plea agreement, the presentence report, and
the sentencing transcript. United States v. King, 741 F.3d 305,
306 (1st Cir. 2014).


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and two ammunition magazines.               As Davis had previously been

convicted    of    a   crime   punishable    by   imprisonment   for   a   term

exceeding one year, the indictment charged Davis with one count of

possession of a firearm by a convicted felon, in violation of 18

U.S.C. § 922(g)(1).

             Davis pled guilty and entered into a Plea and Forfeiture

Agreement with the government.         With respect to sentencing, the

parties stipulated that the base offense level was 20 under

U.S.S.G. § 2D1.1, with a 3-level downward adjustment applied for

acceptance of responsibility under U.S.S.G. § 3E1.1.             Although the

parties did not stipulate to Mr. Davis's Criminal History Category

("CHC"), the agreement noted that for a CHC of II, a guideline

sentence of between 27 and 33 months would be appropriate.                  The

parties agreed "to recommend the lower end" of this guideline

range, with "any recommendation for a sentence below or above the

stipulated sentencing range" constituting a material breach of the

agreement.        Finally, the plea agreement stipulated "that the

sentence will be left entirely to the sound discretion of the

Court."

             The United States Probation Office filed a Pre-Sentence

Investigation Report ("PSR") on April 10, 2015. The PSR reiterated

the stipulation of facts contained in the plea agreement, and also

included additional details of the investigation which led to

Davis's arrest.        In particular, Paragraphs 11 and 12 of the PSR


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included allegations that there were children in the area of the

public housing project in Guayama where individuals were selling

drugs, and that PRPD agents observed Davis in the vicinity of the

drug point displaying the AK-47.

            At the sentencing hearing, defense counsel objected to

the inclusion of these additional factual allegations in the PSR.

As   a   result   of   this   argument,   the   Court   requested    that   the

government produce a witness to testify as to the objected-to

information contained in the PSR.             In response, the government

called Agent Israel Martinez Cosme, who testified to the events in

question    and   was    subjected   to   cross-examination     by    defense

counsel.    Following the conclusion of Agent Martinez's testimony,

the court directed the agent to re-take the stand and then asked

whether there were children in the area at the time that the agent

observed Davis brandishing the AK-47.            The agent responded that

there were.       Following Agent Martinez's testimony, the court

overruled defense counsel's objections, finding that "paragraphs

11 and 12 are totally consistent in very general terms with the

situation that I have before me."            The court ordered allocution,

and the government reiterated that it stood by the sentencing

recommendation contained in the plea agreement.

            The district court concluded that the underlying factual

circumstances of the case, in particular the defendant's prior

criminal history and the firepower and ammunition in his possession


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at the time of his arrest, justified an upward variance from the

recommended sentence in the plea agreement, and sentenced Davis to

60 months in prison.       The court stated that, in its view, the

sentencing recommendation was too lenient.

           Davis   later   filed      a    Motion    for    Reconsideration,

reiterating arguments made by defense counsel at the sentencing

hearing.     Specifically,    Davis       argued    that   Agent   Martinez's

testimony was not credible and that certain factual allegations

considered by the court during the sentencing hearing were not

true, in particular the agent's testimony that children were

present in the area when Davis openly displayed the AK-47.               The

district court denied that motion, and this appeal followed.

                             II. Discussion

      A.   Breach of The Plea Agreement

           Davis claims that the government's conduct both prior to

and during the sentencing hearing constituted a material breach of

the terms of the plea agreement.             As an initial matter, the

government contends that Davis's argument should be deemed waived

due to his failure to raise it below.          While we agree that Davis

did not raise this claim before the district court, we do not agree

that this failure necessarily constitutes a waiver.                  Rather,

without deciding whether the argument was waived, we give the

defendant the benefit of the doubt and apply plain error review.

See United States v. Saxena, 229 F.3d 1, 5 (1st Cir. 2000).


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         Under this standard, Davis must establish that "(1) there

was error; (2) the error was plain; (3) the error affected the

defendant's     substantial    rights;     and    (4)      the   error    adversely

impacted the fairness, integrity, or public reputation of judicial

proceedings."     United States v. Riggs, 287 F.3d 221, 224 (1st Cir.

2002).    Davis presents four arguments that the government breached

the plea agreement, none of which we find persuasive.

              First, Davis argues that the government provided the

probation office with facts which were not set forth in the plea

agreement.      The government responds that it was under an ethical

obligation to do so.      See United States v. Riggs, 347 F.3d 17, 19

(1st   Cir.    2003)   ("It   was   not   only    appropriate,      but    also   in

conformity with the government's obligations for it to provide the

sentencing     court   with   information        as   to   the   material     facts

surrounding the offense.").

              While the United States is free to stipulate to a less

detailed factual summary in a plea agreement, the government must

respond to requests for relevant documents filed by the Court — of

which the probation officer is viewed as an extension.                      Saxena,
229 F.3d at 5, n. 1.           Furthermore, Davis was aware that this

information was provided to the probation office, and his attorney

was able to object to its inclusion in the PSR and was given an

adequate opportunity to cross-examine a witness at the sentencing

hearing on the disputed material.


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            Second, Davis contends that the government called a

witness to testify at the sentencing hearing "knowing that the

officer would be presenting evidence of offense conduct beyond

what Mr. Davis" agreed to in the plea agreement.              Agent Martinez

was called by the government because the court instructed it to do

so, and this only occurred because defense counsel had requested

a hearing on the issues contained in the PSR.                  In fact, the

government did not have the witness available initially, and the

court    recessed   the   hearing   until   the   afternoon    so   that   the

government could produce the agent.         In short, there was no breach

of the plea agreement by the government in responding to the

court's request that it make the witness available.

            Third, Davis contends that the government breached the

plea agreement by objecting to certain questions from defense

counsel during her cross-examination.             In fact, the government

objected only twice — first when defense counsel asked the witness

a sarcastic question,3 and later when it believed that defense

counsel had made a factual mistake in one of her questions.                Both

objections were sustained, and neither hindered the ability of

defense counsel to effectively cross-examine the agent.




     3  Specifically, when challenging Agent Martinez on what he
had observed that day, defense counsel asked if the agent could
"see through buildings."


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             Mr. Davis's fourth argument, that the government merely

paid lip service to the plea agreement, is similarly without merit.

During allocution, the government reiterated that it stood by the

terms of the plea agreement, even after the Court criticized the

plea agreement as being too lenient.                While the government "must

keep its plea agreements," United States v. Mata-Grullon, 887 F.2d
23,   24    (1st    Cir.    1989),    "its   recommendations       need    not   be

'enthusiastic.'"       Id. (quoting United States v. Ramos, 810 F.2d
308, 313-14 (1st Cir. 1987)).

      Thus, there was no breach by the government.

      B.     The Reasonableness of the Sentence

             Because    Davis   objected       to   his    sentence     before   the

District    Court,     we    review    its   reasonableness       for    abuse   of

discretion.        United States v. King, 741 F.3d 305, 307 (1st Cir.

2014) (citing Gall v. United States, 552 U.S. 38, 51 (2007)).

Under this standard, we first evaluate whether the District Court

committed any procedural error, including, inter alia, "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 — including an explanation for any deviation from the

Guidelines range."         Gall, 552 U.S. at 51.          Secondly, "[w]here the

district court has committed no such [procedural] error, we next


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turn to the substantive reasonableness of the sentence actually

imposed and review the sentence for abuse of discretion."                    United

States     v.    Politano,   522 F.3d 69,   72    (1st   Cir.   2008).       The

substantive reasonableness inquiry "focuses on the duration of the

sentence in light of the totality of the circumstances."                     United

States v. Del Valle-Rodríguez, 761 F.3d 171, 176 (1st Cir. 2014).

                We find that the district court committed no procedural

error.     The court accurately calculated the guideline sentencing

range, which was also spelled out by the parties in the plea

agreement.        Although Davis argues that the Court acted as an

advocate for the government at the sentencing hearing by calling

a witness to testify as to the contents of the PSR, this argument

misstates the record.         Defense counsel asked the court to make a

ruling on a factual dispute which Davis raised for the first time

at   the   sentencing     hearing,   and   the   court       did   not   abuse   its

discretion by asking the government to call a witness to testify

on that issue.       Having ruled on the inclusion of the facts in the

PSR, the court did not abuse its discretion by considering those

factors in its sentencing decision.

                Finally, the court adequately explained why it believed

that an upward variance was justified in Davis's case, as it was

required to do.        See, e.g., Del Valle-Rodríguez, 761 F.3d at 176

("Where, as here, a court imposes a sentence above the GSR, it

must justify the upward variance.").                 The district court cited


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Davis's prior criminal history, which included a previous firearms

violation for which he was already serving a 13-year term of

probation.        The court also emphasized the inherent danger in

carrying an AK-47 semi-automatic rifle with two high capacity

magazines and 109 rounds of ammunition, particularly in an area

where children were present and where drugs were being sold.                          The

court    noted    that     Davis's       conduct       "could    have     resulted   in   a

massacre," a point not disputed by defense counsel.                         There was no

abuse by the District Court in imposing an upward variance.

             Finally, we address Davis's argument that the sentence

was   substantively        unreasonable.           A    sentence     is    substantively

reasonable       "so    long   as   it    rests    on     a     'plausible    sentencing

rationale' and embodies a 'defensible result.'"                         United States v.

Ruiz-Huertas, 792 F.3d 223, 228 (1st Cir. 2015) (quoting United

States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008)).                        In this case,

we reject Davis's argument that the sentence was substantively

unreasonable.          The 60-month sentence is well below the statutory

maximum of 120 months for violation of the felon-in-possession

statute.     And we do not find any evidence that the District Court

abused     its     discretion        in     determining           that     the   nature,

circumstances, and severity of the defendant's conduct warranted

a 60-month sentence in this case.

      AFFIRMED.




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