United States Court of Appeals For the First Circuit
No. 19-1284
UNITED STATES OF AMERICA,
Appellee,
v.
ALEXIS O. DÍAZ-LUGO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Howard, Chief Judge, Selya and Kayatta, Circuit Judges.
José Agustin Arce-Díaz on brief for appellant. W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá- Almonte, Assistant United States Attorney, Chief, Appellate Division, and Julia M. Meconiates, Assistant United States Attorney, on brief for appellee.
June 24, 2020 SELYA, Circuit Judge. Defendant-appellant Alexis O.
Díaz-Lugo complains that he cooperated fulsomely with federal
authorities after the time of his arrest, yet his cooperation was
given no tangible recognition by the sentencing court. He also
complains about a number of other alleged sentencing errors.
Because all of the appellant's claims run headlong into impassible
roadblocks, we affirm his upwardly variant sixty-month sentence.
I. BACKGROUND
We start by sketching the facts and the travel of the
case. In November of 2017, Puerto Rico police officers, conducting
a carjacking investigation, stopped a motor vehicle in which the
appellant and two other men were riding. In the car, the officers
found two firearms that were altered to fire automatically and
four high-capacity (extended) magazines.
The appellant was no stranger to law enforcement.
Approximately five years earlier, he had pleaded guilty in a local
court to illegal appropriation of a vehicle and had been sentenced
under a diversionary program. Placed on probation, he lost little
time in violating the conditions of his release by absconding from
supervision in March of 2013. That same year, he was charged
federally with being a felon in possession of a firearm. See 18
U.S.C. § 922(g)(1). He pleaded guilty to the federal charge, and
the district court sentenced him to a twenty-seven-month term of
immurement, followed by three years of supervised release.
- 2 - Once he served his federal prison sentence, he was
remitted to the custody of the Puerto Rico authorities to face an
abscondment-from-probation charge. He served time for that
probation violation and, following his release from local custody,
the district court sentenced him to serve an additional ten months
in prison for a supervised release violation. At the same time,
the court imposed an additional two-year term of supervised
release. The appellant began serving this new term of supervised
release in August of 2017 (approximately three months before he
was arrested in the course of the carjacking investigation).
On December 7, 2017, a federal grand jury sitting in the
District of Puerto Rico returned an indictment naming the appellant
and two codefendants. As relevant here, the grand jury charged
the appellant with being a prohibited person (specifically, a
previously convicted felon) in possession of firearms and
ammunition, see id., and being in possession of a machine gun, see
id. § 922(o)(1). The appellant initially maintained his innocence
but — after informing the court that he was considering cooperating
— he indicated a desire to change his plea. His case was then
transferred to the judge who was considering the probation office's
motion to revoke his existing term of supervised release. He
proceeded to enter a straight guilty plea to both counts of the
indictment.
- 3 - Once the appellant had pleaded guilty, the probation
office prepared a presentence investigation report (the PSI
Report), which made a series of recommended calculations and
suggested a guideline sentencing range (GSR) of thirty to thirty-
seven months. Neither side objected to the proposed GSR. At the
disposition hearing, the appellant sought a twenty-four-month
sentence, and the government advocated a thirty-month sentence.
The sentencing court spurned both recommendations and sentenced
the appellant to serve a sixty-month term of immurement on each
count, concurrent with each other, but consecutive to any sentence
to be imposed for revocation of the appellant's existing term of
supervised release. This timely appeal followed.
II. ANALYSIS
In this venue, the appellant does not challenge the
sentencing court's guideline calculations but, even so, attacks
his sentence as both procedurally flawed and substantively
unreasonable. Appellate review of claims of sentencing error
"involves a two-step pavane." United States v. Miranda-Díaz,
942 F.3d 33, 39 (1st Cir. 2019). Under this bifurcated approach,
we first examine any claims of procedural error. See United
States v. Matos-de-Jesús, 856 F.3d 174, 177 (1st Cir. 2017). If
the challenged sentence passes procedural muster, we then
proceed to examine any claim of substantive unreasonableness.
- 4 - See United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir.
2015).
At both steps of this pavane, our review of preserved
claims of error is for abuse of discretion. See Gall v. United
States, 552 U.S. 38, 46 (2007); United States v. Flores-
Machicote, 706 F.3d 16, 20 (1st Cir. 2013). For simplicity's
sake, we assume — favorably to the appellant — that his various
claims of error are preserved. The abuse-of-discretion standard
is multifaceted. When that standard obtains, we review the
district court's factual findings for clear error and examine
its answers to questions of law (including questions involving
the "interpretation and application of the sentencing
guidelines") de novo. See United States v. Ilarraza, __ F.3d
__, __ (1st Cir. 2020) [No. 19-1395, slip op. at 8]; Flores-
Machicote, 706 F.3d at 20.
With this brief preface, we turn first to the
appellant's fleet of procedural claims. Once that fleet has
sailed, we appraise his claim that his sentence is not
substantively reasonable.
A. Claims of Procedural Error.
1. Cooperation. The flagship of the appellant's fleet
of procedural claims is his claim that the sentencing court
failed to appreciate its discretion to consider his cooperation
with the government and impose a downwardly variant sentence on
- 5 - that ground. He argues that such discretion exists under 18
U.S.C. § 3553(a) notwithstanding the government's decision not
to file a motion for a "substantial assistance" departure under
USSG §5K1.1. In the appellant's view, his participation in
three proffer sessions, during which he gave what he labels as
"valuable truthful information" to the government, demonstrated
"a reduced likelihood of recidivism" and was "a beneficial part
of his . . . history and character."
We agree with the appellant's premise: a sentencing
court ordinarily has discretion to consider a defendant's
cooperation with the government as a mitigating factor. See
United States v. Landrón-Class, 696 F.3d 62, 77 (1st Cir. 2012).
In an appropriate case, such cooperation may persuade the
sentencing court to impose a downwardly variant sentence. See
United States v. Jiménez, 946 F.3d 8, 16 (1st Cir. 2019) ("Our
precedent is clear that sentencing courts are permitted to hand
down shorter sentences to those who cooperate and show
remorse."). This praxis is consistent with our interpretation
of 18 U.S.C. § 3553(a)(1) as broadly instructing sentencing
courts to consider a defendant's history and characteristics,
which (as we have said) "includes the history of . . .
cooperation and characteristics evidenced by cooperation."
Landrón-Class, 696 F.3d at 77 (quoting United States v.
Fernandez, 443 F.3d 19, 33 (2d Cir. 2006)). The fact that the
- 6 - government abstains from moving for a section 5K1.1 departure
based on substantial assistance in investigating or prosecuting
another does not divest the sentencing court of its statutory
discretion to consider a defendant's cooperation and impose a
downwardly variant sentence predicated on such cooperation. See
id.
Although we agree with the appellant's premise, we
disagree with his conclusion that the court below was unaware
of its discretion to consider cooperation as a relevant factor
in the section 3553(a) sentencing calculus. Nothing in the
record so much as hints that the court thought that its
sentencing calculus under 18 U.S.C. § 3553(a) was constrained
by the government's decision to eschew a downward-departure
motion under USSG §5K1.1. The appellant's contrary suggestion
is woven out of whole cloth.
The record makes manifest that the appellant's
cooperation was a live issue at sentencing. During the
disposition hearing, the government forthrightly explained that
the appellant sat for several proffer sessions, answered the
government's questions, and was willing to cooperate generally.
The government went on to state, though, that because the
information furnished "was not actionable," it believed that a
substantial assistance departure was not justified. In the
course of this discussion, the government never suggested that
- 7 - the appellant's cooperation should not be weighed in the balance
when the court determined whether to impose a sentence below,
within, or above the GSR. Instead, the government took the
position that fairness demanded that the court "be made aware
of [the appellant's] willingness to cooperate."
For his part, the appellant's counsel called the
court's attention to his sentencing memorandum, which lauded the
appellant's cooperation with the government. Counsel urged the
court to consider this cooperation in imposing sentence.
Discounting the government's description of the fruits of the
cooperation, counsel declared that the appellant had supplied
"very valuable information." The government interposed no
objection either to this line of argument or, more generally,
to the sentencing court's consideration of the appellant's
cooperation. Where, as here, a sentencing court entertains
proffered facts and arguments at the disposition hearing without
giving any indication that it will refuse to consider those
facts and arguments in constructing its sentencing calculus,
there is usually no reason to think that the court failed to
consider those facts and arguments in fashioning the sentence.
See Landrón-Class, 696 F.3d at 78.
To be sure, the sentencing court — as the appellant
points out — never specifically addressed his cooperation. It
is common ground, though, that a sentencing court need not speak
- 8 - to a defendant's arguments one by one and expressly dispose of
each of them. See United States v. Cortés-Medina, 819 F.3d 566,
571 (1st Cir. 2016) ("[W]e discern no abuse of discretion in the
sentencing court's failure to acknowledge explicitly that it had
mulled the defendant's arguments."); see also United States v.
Clogston, 662 F.3d 588, 592 (1st Cir. 2011). When a defendant
has identified potentially mitigating sentencing factors and
those factors are thoroughly debated at sentencing, the fact
that the court "did not explicitly mention them during the
sentencing hearing suggests they were unconvincing, not
ignored." United States v. Lozada-Aponte, 689 F.3d 791, 793
(1st Cir. 2012).
That ends this aspect of the matter. Viewing the
record as a whole, we reject as speculative the appellant's
claim that the district court did not appreciate its discretion
to consider his cooperation in fashioning his sentence.
Relatedly, the appellant argues that even if the
sentencing court considered his cooperation sub silentio, that
cooperation demanded a downward variance. This argument is
easily dispatched. Although the appellant may have tried his
best to cooperate by engaging in several proffer sessions, the
information that he provided proved to be (in the government's
view) "not actionable." As a result, the government was "unable
to build a case around it."
- 9 - Although a defendant's full-throated cooperation is
generally a mitigating factor deserving of weight in the
sentencing calculus, see United States v. Doe, 398 F.3d 1254,
1259 (10th Cir. 2005), such cooperation may be entitled to more
weight in some cases than in others, see Fernandez, 443 F.3d at
34. Weighing the value of an individual sentencing factor,
whether mitigating or aggravating, is a function that, for the
most part, falls within the sentencing court's informed
discretion. See United States v. Santiago-Rivera, 744 F.3d 229,
232 (1st Cir. 2014).
Here, the court apparently recognized that even though
the appellant's cooperation with the government was commendable,
not every instance of cooperation is fruitful enough to justify
a reduced sentence. The court implicitly applied this reasoning
in declining to vary downward. We discern no abuse of
discretion: when a defendant's cooperation, though earnest,
leads only to a dry hole, a sentencing court does not abuse its
discretion by failing to vary downward on account of that
cooperation. See Fernandez, 443 F.3d at 34 (upholding denial
of downward variance when "cooperation was 'fitful'").
2. Drug Arrest. The appellant submits that the
sentencing court improperly gave weight to his past arrest for
a drug charge. Consideration of the drug arrest was problematic,
he says, because he was never convicted of the underlying
- 10 - offense. As we explain below, the appellant is fishing in an
empty sea.
It is true that the district court, when reviewing the
appellant's criminal history, mentioned that he had been
"arrested for possession of controlled substances at the [s]tate
[c]ourt . . . but these charges were dismissed" on procedural
grounds. This reference, the appellant suggests, violated USSG
§4A1.3(a)(3), which prohibits consideration of a prior arrest
record for the purpose of imposing an upward departure. Even
though the guideline provision upon which the appellant's
argument rests is inapposite,1 the appellant's claim of error
gives us pause. Arrest records differ materially from
convictions, and their place, if any, in sentencing proceedings
is not open and shut.
One limitation on the use of an arrest record at
sentencing is potentially relevant here: when an arrest has not
ripened into a conviction, a sentencing court may not rely on that
1 The appellant is obviously incorrect in suggesting that the district court violated USSG §4A1.3(a)(3). That guideline provision applies only to departures, and we have made it luminously clear that departures and variances are not of the same genre. See Miranda-Díaz, 942 F.3d at 40 (explaining that departure is term of art referring only to non-GSR sentences imposed under guidelines framework whereas variance is based on court's consideration of section 3553(a) factors); United States v. Santini-Santiago, 846 F.3d 487, 490 (1st Cir. 2017) (similar). The case at hand involves a variant sentence, not a departure sentence.
- 11 - arrest in a manner that equates the arrest with guilt. See United
States v. Díaz-Rivera, 957 F.3d 20, 26-27 (1st Cir. 2020). Nor
may a sentencing court rely on an arrest record as evidence of a
defendant's conduct in the absence of some reliable indication
that the underlying conduct actually occurred. See id.
These proscriptions do not mean, however, that the mere
mention of an arrest record is forbidden to a sentencing court.
For example, a sentencing court does not abuse its discretion
merely by reciting a defendant's arrest record. See United States
v. Rodríguez-Reyes, 925 F.3d 558, 563 (1st Cir.), cert. denied,
140 S. Ct. 193 (2019).
In this instance, the district court mentioned the
appellant's drug arrest only while constructing a chronology of
the appellant's criminal history. As quickly as the court referred
to the arrest, it completed its recital of the appellant's criminal
record and then moved on to a detailed discussion of the section
3553(a) factors — a discussion that did not include any mention of
the drug arrest. What is more, the court made clear that the
appellant's criminal history score was derived solely from his
prior convictions and his commission of the charged offenses while
on supervised release.
On this antiseptic record, it is nose-on-the-face plain
that the district court's passing reference to the appellant's
drug arrest played no role in the sentencing calculus. We hold,
- 12 - therefore, that the sentencing court's mere mention of the drug
arrest, solely as a matter of historical fact, was not an abuse of
discretion.
The appellant tries a variation on this theme. He
maintains that, when chronicling the drug arrest, the sentencing
court impermissibly injected "the perceived leniency of Puerto
Rico's courts" into the sentencing equation. This occurred, he
says, when the court noted that the dismissed drug charge had,
"[a]s usual," not been refiled.
Let us be perfectly clear. This observation had no place
in the sentencing proceeding and would have been better left
unsaid. After all, a perceived systemic deficiency in the local
judicial system would not normally be an appropriate sentencing
factor, see Flores-Machicote, 706 F.3d at 21, and it was not an
appropriate sentencing factor in this case.
For purposes of this appeal, though, the district
court's disparagement is a non-issue. A sentencing court's mere
grousing about a perceived shortcoming in a local judicial system,
without more, does not taint a sentence. And here, there is no
"more": the record offers no support at all for the suggestion
that the district court, in fashioning the appellant's sentence,
gave any weight to the perceived habitual leniency of the Puerto
Rico courts. Although it is regrettable that the court muddied
the waters by commenting negatively on how the local justice system
- 13 - handles criminal cases, we detect nothing that calls into question
the validity of the appellant's sentence. See, e.g., United States
v. Milán-Rodríguez, 819 F.3d 535, 540 (1st Cir. 2016) (finding no
abuse of discretion when sentencing court expressed frustration
with perceived leniency of Puerto Rico courts while discussing
defendant's criminal history); United States v. Rivera-González,
776 F.3d 45, 50-51 (1st Cir. 2015) (finding no abuse of discretion
even though sentencing court mentioned leniency of local courts in
connection with need for deterrence).
3. Nullification. We pivot next to the appellant's
contention that the sentencing court effectively nullified his
three-level reduction for acceptance of responsibility, see USSG
§3E1.1, by imposing an above-the-range sentence. This
contention is hopeless.
The court below found that the appellant had accepted
responsibility by pleading guilty early in the proceedings and
saving the government the expense of a trial. It therefore
awarded him a three-level reduction in his total offense level.
The court separately determined that an upward variance was
appropriate due to the seriousness of the offenses, the need to
promote respect for the law, the necessity of protecting the
public, and considerations of deterrence and condign punishment.
These were distinct sentencing determinations, resting on
different factual predicates, and the appellant offers no
- 14 - principled reason why we should consider the latter
determination as a negation of the former determination. To
hold that one nullified the other would effectively hamstring a
sentencing court by precluding an upward variance whenever a
defendant has accepted responsibility.
We add, moreover, that the appellant's nullification
theory is plucked out of thin air, unanchored to any developed
argumentation. He cites no authority for so radical a proposition,
and we are aware of none. And as a practical matter, it seems
self-evident that the appellant's upwardly variant sentence
might have been even stiffer had he not garnered the acceptance-
of-responsibility credit.
4. Heartland. Battling on, the appellant attacks the
sentencing court's rationale for his upwardly variant sentence
on the ground that the GSR fully accounted for the aggravating
nature of the firearm he possessed and his commission of the
charged crimes while on supervised release. This attack is not
entirely without force. We have cautioned that "when a
sentencing court relies on a factor already accounted for by the
sentencing guidelines to impose a variant sentence, [it] must
indicate what makes that factor worthy of extra weight." United
States v. Fields, 858 F.3d 24, 32 (1st Cir. 2017) (citing United
States v. Zapete-Garcia, 447 F.3d 57, 60 (1st Cir. 2006)).
- 15 - Even so, a deeper dive into the record allays any such
concern. The court below acknowledged with approval the
probation officer's guideline calculations and her rendition of
the nature and circumstances of the offenses. The court then
explained in some detail why certain of the factors embedded in
the guideline calculation were deserving of extra weight in this
case. To this end, the court was especially troubled by the
appellant's possession not only of a machine gun but of two
machine guns and four extended magazines. It also worried that
machine guns are among the most dangerous of modern weapons
based on their ability "to kill dozens of people within seconds"
and reflected that such weapons "are not typically possessed by
law-abiding citizens for lawful purposes." Similarly, the court
elaborated upon the appellant's commission of the charged crimes
while on supervised release, expressing concern about the
repetitive nature of the appellant's violations of both
probationary terms and supervised release conditions.
The relevant guideline provision, see USSG
§2K2.1(a)(4)(B), contemplates only a single machine gun. Thus,
the guideline calculation did not account for the possession of
two machine guns, nor did it account for the possession of four
high-capacity magazines. By the same token, the relevant
guideline provision, see id. §4A1.1(d), (and, thus, the
guideline calculation) does not account for multiple violations
- 16 - of probationary terms and supervised release conditions.
Because these facts remove this case from the heartland of the
applicable guideline provisions, we discern no abuse of
discretion in the sentencing court's use of them in constructing
an upwardly variant sentence. See Fields, 858 F.3d at 32-33.
5. Variance: Justification and Extent. The
appellant's last claim of procedural error likewise focuses on
the upward variance. He asserts that the sentencing court failed
"to justify the extent of the variance." This assertion
collapses two distinct claims of error: that the sentencing
court failed to explain why an upwardly variant sentence was
necessary and that the extent of the variance imposed was
excessive. We deal with these two facets of the claim
separately.
With respect to justification, we acknowledge that a
sentencing court is obligated to explicate the basis for a
variant sentence. See 18 U.S.C. § 3553(c). This does not mean,
though, that the court's explication must "be precise to the
point of pedantry." United States v. Fernández-Cabrera, 625
F.3d 48, 53 (1st Cir. 2010). On appeal, a reviewing court must
assess the sentencing court's explanation of an upwardly variant
sentence in a practical, common-sense manner. To this end, we
ask whether the district court reasonably explained the sentence
in a manner that relies on factors not adequately accounted for in
- 17 - the GSR. Such a factor may, for example, be one that simply was
not considered in constructing the GSR, see United States v.
García-Mojica, 955 F.3d 187, 193 & n.7 (1st Cir. 2020), or one
that was considered in constructing the GSR but not in a way that
sufficiently accounts for the idiosyncrasies of a particular case,
see Fields, 858 F.3d at 32. In each such instance, the sentencing
court must identify the factor and explain why the factor calls
for an upward variance. See, e.g., United States v. Rivera-
Morales, __ F.3d __, __ (1st Cir. 2020) [No. 17-1258, slip op.
at 37-38]; Fields, 858 F.3d at 32; Zapete-Garcia, 447 F.3d at 60.
The extent of the explanation must be commensurate with the extent
of the variance. See Fields, 858 F.3d at 31.
Here, the sentencing court limned four distinct
reasons for the steep upward variance. It specifically found
that the GSR did not "reflect[] the seriousness of the offense,
promote[] respect for the law, protect[] the public from further
crimes by [the appellant], or address[] the issues of deterrence
and punishment." In explaining its conclusions, the court
expressed particular concern about the troubling nature of two
machine guns, noting their efficient lethality and the paucity
of lawful uses for them. For sentencing purposes, such well-
grounded concerns may influence a sentencing court's appraisal
of the gravity of a defendant's offense conduct. See United
States v. Gallardo-Ortiz, 666 F.3d 808, 816, 818 (1st Cir. 2012).
- 18 - So, too, the sentencing court leaned heavily on the
appellant's criminal history, commenting upon his generalized
(and well-documented) "disregard for the law." See 18 U.S.C.
§ 3553(a)(1), (2)(A); Flores-Machicote, 706 F.3d at 23-24.
Specifically, the court observed that the appellant committed
the offenses of conviction "despite having a previous [f]ederal
conviction, and a revocation" of his supervised release term.
Exacerbating the situation, the appellant "continuous[ly]
violat[ed]" his supervised release conditions and maintained
"negative associations" while on probation and supervised
release.
Collectively, these considerations took the
appellant's case well outside the heartland of the relevant
guideline calculation. See supra Part II(A)(4). They
appropriately informed the sentencing court's evaluation of the
gravity of the offenses of conviction; the appellant's likely
recidivism; his lack of respect for the law; and the risks that
the appellant posed to society.
In evaluating the explanation for this upward
variance, we do not write on a pristine page. As we stated on
an earlier occasion, "[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
- 19 - muster." United States v. Sepúlveda-Hernández, 817 F.3d 30, 33
(1st Cir. 2016) (alteration in original) (quoting Fernández-
Cabrera, 625 F.3d at 54); see Rivera-Morales, __ F.3d at __ [slip
op. at 36]. So it is here. "Because the court made pellucid
. . . the driving force[s] in its sentencing calculus, its
explanation was sufficient to satisfy the statutory mandate."
Rivera-Morales, __ F.3d at __ [slip op. at 37].
This brings us to the portion of the appellant's claim
that challenges the extent of the variance and posits that it
was excessive. This assignment of error need not detain us. To
begin, we question whether a claim of excessiveness is a claim
of procedural error at all. In any event, the extent of the
variance and the "defensible result" prong of substantive
reasonableness, see United States v. Martin, 520 F.3d 87, 96 (1st
Cir. 2008), are simply two sides of the same coin. They are
alternative (and interchangeable) ways of saying that in the
appellant's view the length of his sentence is beyond the pale.
See United States v. Fernández-Garay, 788 F.3d 1, 6 (1st Cir.
2015). To avoid redundancy, we treat this claim of error as
part and parcel of the appellant's claim of substantive
unreasonableness, to which we repair forthwith.
B. Claim of Substantive Unreasonableness.
The appellant's last stand consists of a claim that
his sixty-month sentence is substantively unreasonable. He
- 20 - trains his fire on the sentencing court's upward variance. And
we do not gainsay that the upward variance is steep: twenty-
three months (nearly two full years) over the top of the GSR.
We review this claim for abuse of discretion. See
Holguin-Hernandez v. United States, 140 S. Ct. 762, 766 (2020);
United States v. Arce-Calderon, 954 F.3d 379, 382 (1st Cir. 2020).
"In the sentencing context, 'reasonableness is a protean
concept.'" Clogston, 662 F.3d at 592 (quoting Martin, 520 F.3d
at 92). Thus, there is not a single reasonable sentence in any
given case but, rather, an expansive "universe of reasonable
sentencing outcomes." Id.; see United States v. de Jesús, 831
F.3d 39, 43 (1st Cir. 2016). Accordingly, we must determine
whether the challenged sentence falls within that expansive
universe. In making this determination, we look for the
hallmarks of a substantively reasonable sentence: "a plausible
sentencing rationale and a defensible result." Martin, 520 F.3d
at 96.
Typically, a sentencing court has a more intimate
knowledge of a particular case than does an appellate court.
See Gall, 552 U.S. at 51-52. Recognizing the sentencing court's
unique coign of vantage, we have regularly declined simply to
substitute our judgment for that of the sentencing court. See,
e.g., Miranda-Díaz, 942 F.3d at 42; United States v. Vargas-
García, 794 F.3d 162, 167 (1st Cir. 2015). For similar reasons,
- 21 - a claim of substantive unreasonableness will fail if it comprises
nothing more than "a thinly disguised attempt . . . 'to
substitute [the appellant's] judgment for that of the sentencing
court.'" Vargas-García, 794 F.3d at 167 (quoting Clogston, 662
F.3d at 593). And as long as the sentencing court has mulled
all the relevant factors, an appellant cannot prevail merely by
carping about the court's relative weighing of those factors.
See United States v. Coombs, 857 F.3d 439, 452 (1st Cir. 2017).
Here, the sentencing court indicated that it had
considered all the section 3553(a) factors and discussed a
handful of them. In the process, it focused on the seriousness
of the offense conduct, the appellant's checkered past and
likelihood of recidivism, and the need to promote respect for
the law. On balance, we think that the court articulated a
plausible sentencing rationale (albeit one with which the
appellant disagrees).
In our view, the sentencing court also reached a
defensible result. The mere fact that a district court imposes
an upwardly variant sentence does not render the sentence
substantively unreasonable — and this remains true even where,
as here, the upward variance is steep. See Miranda-Díaz, 942
F.3d at 43; Flores-Machicote, 706 F.3d at 25; Gallardo-Ortiz,
666 F.3d at 811. Context matters, and the offense conduct in
this case was egregious; as we have said, it involved the
- 22 - possession of two machine guns and four extended magazines on
the heels of a previous felon-in-possession conviction. As if
to rub salt in an open wound, the appellant committed the
offenses of conviction while he was serving a supervised release
term incident to that federal felon-in-possession conviction.
And, finally, the appellant committed these new offenses against
a backdrop of repeated probation violations.
Facts are stubborn things, and a sentencing court is
free to draw reasonable inferences from them. See United States
v. Montañez-Quiñones, 911 F.3d 59, 67 (1st Cir. 2018), cert.
denied, 139 S. Ct. 1388 (2019). Viewed through this lens, we
deem fully supportable the findings of the court below that the
appellant's offenses were serious; that the prospect of the
appellant's recidivism was real; that the need to protect the
public was apparent; and that the appellant's earlier
interactions with the judicial system seem to have taught him
no lessons. Given these supportable findings, we cannot say
that a sixty-month sentence was substantively unreasonable. See
Flores-Machicote, 706 F.3d at 25; Gallardo-Ortiz, 666 F.3d at
818. Consequently, the district court's imposition of such a
sentence was within the encincture of its discretion.
- 23 - III. CONCLUSION
We need go no further. For the reasons elucidated
above, the appellant's sentence is
Affirmed.
- 24 -