United States of America v. Jorge Luis Gallardo-Ortiz, A/K/A Legend

Howard, Selya and Thompson, Circuit Judges.

By plea agreement, defendant-appellant Jorge Luis Gallardo-Ortiz pled guilty to two criminal counts involving his unlawful possession of ammunition and a firearm, a Glock Model 27, which is .40 caliber handgun capable of operating as a fully automatic machine gun. See 18 U.S.C. §§ 922(g)(1), 922(o); see also 18 U.S.C. § 921(23) (incorporating definition of “machinegun” firearm under 26 U.S.C. § 5845(b)). The parties recommended a sentence of 33 months of incarceration, which the district court rejected. Instead, after considering the particulars of the case in light of the statutory sentencing factors, 18 U.S.C. § 3553(a), the court imposed a sixty-month sentence of incarceration — nineteen months beyond the top of the guidelines sentencing range (GSR) of 33-41 months — and three years of supervised release. Gallardo appeals, arguing that the stringent sentence is tainted by procedural error and is substantively unreasonable.*fn1 We disagree and affirm the sentence.