United States Court of Appeals For the First Circuit
No. 21-1942
UNITED STATES OF AMERICA,
Appellee,
v.
JEAN CARLOS POLACO-HANCE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Barron, Chief Judge, Montecalvo and Rikelman, Circuit Judges.
Mauricio Hernandez Arroyo, with whom Law Offices of Mauricio Hernandez Arroyo was on brief, for appellant.
Jonathan L. Gottfried, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Gregory B. Conner, Assistant United States Attorney, were on brief, for appellee.
June 3, 2024 RIKELMAN, Circuit Judge. Jean Carlos Polaco-Hance
("Polaco") received a seventy-two-month sentence after he was
convicted of being a felon in possession of a firearm and
unlawfully possessing a machinegun. Pointing out that his sentence
is forty percent higher than the upper end of the range recommended
under the federal sentencing guidelines, Polaco challenges the
procedural and substantive reasonableness of his sentence. After
careful consideration, we conclude that the district court
provided sufficient reasons to justify its higher sentence here,
including the large amount of ammunition in Polaco's possession,
and therefore affirm.
I. BACKGROUND
A. Relevant Facts1
In 2019, Polaco pled guilty to attempting to smuggle
about $100,000 in cash in bulk from the United States to the
Dominican Republic and making a false statement to a United States
agency. He was sentenced to fifteen months of imprisonment for
each offense, to be served concurrently, and three years of
supervised release. He began his supervised release term on May
29, 2020.
1"In considering [Polaco's] challenge to his sentence, we take the facts from the trial record, the undisputed portions of the presentence investigation report, and the transcript of the sentencing hearing." United States v. Brown, 26 F.4th 48, 53 n.1 (1st Cir. 2022).
-2- About three months later, Polaco was arrested for the
offenses that form the basis of this appeal. The events that led
to his arrest and conviction transpired on September 10, 2020,
when four police officers were driving in an unmarked police car
through a retail area in Carolina, Puerto Rico. As they drove
past an auto-repair shop where Polaco worked, one of the officers
observed Polaco standing in front of the shop with a bag over his
shoulder. The officer witnessed Polaco reach into the bag and
turn his body as he watched the path of the unmarked car.
Suspecting that Polaco had a firearm in his bag, the officer
informed his colleagues that an individual standing in front of
the auto-repair shop was armed. The driver turned the car around
and parked in between the shop and a bakery located next door; as
they exited the vehicle, the four officers called out to Polaco
that they were police. In response, Polaco began to flee toward
a fence at the back of the shop and threw his bag over the fence.
The officers quickly caught up, arrested Polaco, and recovered the
bag. Inside it, they found a Glock pistol modified to fire
automatically2 and loaded with a magazine capable of holding twelve
rounds of ammunition; four extended magazines capable of holding
twenty-two rounds of ammunition each; and a total of 111 rounds of
"[A] fully automatic weapon [is one] that fires continuously 2
with a single pull on the trigger." United States v. O'Brien, 542 F.3d 921, 922 n.1 (1st Cir. 2008), aff'd, 560 U.S. 218 (2010).
-3- ammunition. Most of the 111 rounds were distributed between the
magazines, though sixteen rounds were loose in the bag.
A federal grand jury indicted Polaco on one count of
being a felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2), and one count of unlawfully possessing
a machinegun, in violation of 18 U.S.C. §§ 922(o) and 924(a)(2).
The case proceeded to trial, after which a jury found Polaco guilty
on both counts.
B. Sentencing Proceedings
Prior to the sentencing hearing, a probation officer
prepared a presentence report ("PSR") setting forth the guideline
calculations that applied in Polaco's case. The sentencing
guideline that covers Polaco's offenses is section 2K2.1. It calls
for a base offense level of twenty if (1) the "offense involved"
a "firearm that is described in 26 U.S.C. § 5845(a)," (2) the
defendant was a "prohibited person" at the time of the offense
(for instance, someone previously convicted of a felony), and (3)
there is no other basis for a greater enhancement under the
guideline. U.S. Sent'g Guidelines Manual § 2K2.1(a)(4)(B)(i)(II),
(ii)(I) (U.S. Sent'g Comm'n 2023) [hereinafter U.S.S.G.]. Section
5845(a), in turn, includes a machinegun among the "firearm[s]" it
lists. 26 U.S.C. § 5845(a)(6). And a machinegun is defined as
"any weapon which shoots, is designed to shoot, or can be readily
-4- restored to shoot, automatically more than one shot, without manual
reloading, by a single function of the trigger." Id. § 5845(b).
Relying on section 2K2.1, the probation officer
calculated Polaco's base offense level as twenty,3 see U.S.S.G.
§ 2K2.1(a)(4)(B)(i)(II), (ii)(I), and then subtracted two levels
for acceptance of responsibility. Polaco's two prior federal
convictions and the fact that he committed the firearms offenses
while on supervised release resulted in a criminal history category
of III. Together, these tabulations yielded a guideline sentencing
range of thirty-three to forty-one months of imprisonment. The
PSR noted that, in determining whether a sentence outside of that
range was appropriate, the court could consider, among other
things, "that [Polaco's] possession of five (5) magazines, four
(4) of which were extended, carrying a total of 111 rounds of
ammunition to be used on a pistol that was converted to fire
automatically[,] increases the likelihood of harm to society
should the defendant in fact discharge the weapon." Neither party
filed objections to the PSR.
The government did, however, file a sentencing
memorandum challenging the guideline calculation and contending
that a sentence above the guideline range was warranted. The
3 Polaco's two offenses (being a felon in possession of a firearm and unlawfully possessing a machinegun) were grouped together for the purpose of calculating his guideline sentencing range.
-5- two-level deduction for acceptance of responsibility was
incorrect, the government maintained. Because Polaco went to trial
to contest factual elements of guilt, rather than to preserve
separate, legal challenges, it argued, his case was not one of the
"rare situations" refenced in the guidelines in which a defendant
can demonstrate acceptance of responsibility while simultaneously
exercising their right to trial. See U.S.S.G. § 3E1.1 cmt. n.2.
The government's guideline calculation, with the two-level
deduction removed from the total offense level, was forty-one to
fifty-one months.
The government then requested a sentence of sixty
months, nine months above that range, for four key reasons. First,
it pointed to the 111 rounds of ammunition and four high-capacity
magazines that Polaco possessed. Second, it contended that guns
that are modified into machineguns pose a heightened danger
compared to machineguns that are manufactured as such. In support
of that proposition, it cited two publications issued by the United
States Army that discuss safety protocols and design features of
manufactured machineguns that soldiers use to stabilize the recoil
and muzzle rise from their weapons. The government asserted that
those features were absent in the simple pistol that Polaco
possessed and, as such, the pistol was particularly hard to control
and particularly dangerous. Third, the government contended that
an upward variance was justified because of the "social context of
-6- the offense[s]" -- that is, high rates of gun-related homicide in
Puerto Rico relative to the rest of the United States -- when
"combined with [the] specific facts" here. Those facts included
Polaco's possession of 111 rounds of ammunition and multiple
high-capacity magazines during the daytime in a retail area of
Puerto Rico. Fourth, citing the need for adequate deterrence, the
government insisted that a higher-than-average sentence was
necessary because the within-guideline sentence Polaco received in
his prior case did not deter him from engaging in new criminal
conduct just three months into his supervised release term.
The district court held the sentencing hearing in
November 2021. At the hearing's outset, Polaco challenged the
government's arguments in support of an upward variance. As
relevant to the issues before us, he contended that the
government's discussion of murder rates in Puerto Rico was
unrelated to his case. He stressed that he never removed the
firearm from the bag he was carrying; rather, his offenses were
victimless and nonviolent. Additionally, Polaco disputed the
government's assertion that the machinegun he possessed was
especially dangerous. He maintained that it was misleading to
rely on the Army publications that discussed design features to
improve stability and avoid recoil for a machinegun, when the
weapon that he possessed was a handgun. Polaco concluded by
requesting a sentence within the guideline range calculated by the
-7- PSR. The government repeated the arguments from its sentencing
memorandum explaining its calculation of the guideline range and
why a nine-month variance above that range was justified.
The district court then proceeded with sentencing. It
instructed the probation officer to amend the PSR so that the
guideline calculation did not include a two-level reduction for
acceptance of responsibility.4 That adjustment -- the only one
the district court made to the PSR's calculation -- yielded a
corrected guideline sentencing range of forty-one to fifty-one
months. Next, the court cited its review of the 18 U.S.C.
§ 3553(a) sentencing factors. And it quoted the introductory
commentary to Part A of Chapter Four of the guidelines, which
discusses calculating a defendant's criminal history score. That
commentary states that "repeated criminal behavior will aggravate
the need for punishment with each recurrence." U.S.S.G. ch. 4,
pt. A, introductory cmt.
Shifting gears, the court briefly discussed Polaco's
age, educational background, and employment status. Turning to
Polaco's offense conduct, the court noted that he had in his
possession 111 rounds of ammunition and five magazines, four of
which were extended and all of which were loaded. It proceeded to
highlight the "highly dangerous and unusual" nature of machineguns
4 Polaco does not challenge this ruling on appeal.
-8- in general. And then it remarked on the dangerousness of altered
machineguns in particular, stating that "pistols altered [to be]
machine[]guns are difficult, if not impossible, to control."
Ultimately, the court concluded that neither party's
recommended sentence reflected the seriousness of the offenses,
addressed the need for deterrence and punishment, protected the
public, or promoted respect for the law. It instead imposed a
sentence of seventy-two months. This timely appeal followed.
II. STANDARD OF REVIEW
We review claims of sentencing error by using a two-step
process. United States v. Colón-Cordero, 91 F.4th 41, 48 (1st
Cir. 2024). Under this approach, "we first determine whether the
sentence imposed is procedurally reasonable and then determine
whether it is substantively reasonable." United States v.
Clogston, 662 F.3d 588, 590 (1st Cir. 2011).
At both steps, we review preserved objections for abuse
of discretion. United States v. De Jesús-Torres, 64 F.4th 33, 39
(1st Cir. 2023). Under the abuse-of-discretion umbrella, we review
the sentencing court's factual findings for clear error and its
legal conclusions de novo. United States v. Carrasquillo-Vilches,
33 F.4th 36, 41 (1st Cir. 2022).
-9- III. DISCUSSION
Polaco challenges both the procedural and substantive
reasonableness of his seventy-two-month sentence. We address each
claim in turn.
A. Procedural Reasonableness
Polaco argues the district court procedurally erred by
relying on a factor already accounted for in his guideline range
to justify its upward variance -- the nature and dangerousness of
machineguns -- without indicating why that factor deserved extra
weight here. He further contends that the court compounded this
procedural error by considering the violent-crime rates in Puerto
Rico without connecting those rates to his individual case, which
involved no violence.
At the outset, we note that the parties debate whether
Polaco preserved his procedural claim by sufficiently raising
these issues before the district court. We need not resolve this
dispute, however, because we conclude that Polaco cannot prevail
even if we grant him the benefit of abuse-of-discretion review.
See United States v. Rijos-Rivera, 53 F.4th 704, 708 (1st Cir.
2022).
Under our precedent, the dangerous nature of a
machinegun cannot alone provide an adequate basis for an upward
variance for offenses covered by section 2K2.1. See United States
v. García-Pérez, 9 F.4th 48, 53-54 (1st Cir. 2021); United States
-10- v. Carrasquillo-Sánchez, 9 F.4th 56, 59-60 (1st Cir. 2021); United
States v. Rivera-Berríos, 968 F.3d 130, 134-35 (1st Cir. 2020).
But here, the district court considered Polaco's machinegun
possession only alongside other, case-specific factors, namely,
the large cache of ammunition and the high-capacity magazines
Polaco had when he was arrested, as well as what the district court
viewed as a heightened need for deterrence.
We begin with the large cache of ammunition and the
high-capacity magazines. At the sentencing hearing, the court
twice noted that Polaco had in his possession 111 rounds of
ammunition and highlighted that he possessed five magazines, four
of which were extended and all of which were loaded. It also
stated that the purpose of extended magazines that hold greater
amounts of ammunition is increased lethality. It is true that, at
the hearing, the district court mentioned the ammunition and
high-capacity magazines in its recitation of the facts, rather
than as part of its explicit justification for the sentence. But
the court's written statement of reasons says that, in imposing
its sentence, it "considered that the U.S. Sentencing Guidelines
d[o] not account for the amount of ammunition and/or magazines
involved in the offense[s]." Further, one of the government's
principal arguments made both in its sentencing memorandum and at
the sentencing hearing was that the court should vary upward
because of the amount of ammunition and four high-capacity
-11- magazines Polaco possessed. From all this information –- the
government's arguments in support of a variance, the district
court's repeated references at the hearing to the magazines and
ammunition, and the written statement of reasons -- it is apparent
that the court predicated Polaco's sentence on the amount of
ammunition and number of high-capacity magazines found in his
possession when he was arrested. See United States v.
Montero-Montero, 817 F.3d 35, 38 (1st Cir. 2016) (explaining that
we may glean a court's explanation for the chosen sentence "by
fair inference from the sentencing record"). We have held
repeatedly that the amount of ammunition and the number of extended
magazines, at least in a range consistent with the amount and
number present in this case, can be valid bases for an upward
variance for firearms offenses. See, e.g., United States v.
Rivera-Santiago, 919 F.3d 82, 85-86 (1st Cir. 2019).
The district court also implicitly grounded its variance
in deterrence and recidivism-based concerns. It began its
§ 3553(a) analysis by quoting the following introductory comment
to the guidelines chapter on criminal history: "General deterrence
of criminal conduct dictates that a clear message be sent to
society that repeated criminal behavior will aggravate the need
for punishment with each recurrence." U.S.S.G. ch. 4, pt. A,
introductory cmt. This language mirrors the government's argument
that a higher-than-average sentence was necessary to prevent
-12- future crimes in part because Polaco received a sentence within
the guideline range in his prior case and then engaged in new
criminal conduct -- this time, firearms offenses -- only three
months after his release from imprisonment. By comparing the
government's assertion with the district court's discussion, we
can fairly infer that the court was adopting the government's view
that a variance was needed because a previous within-guideline
sentence did not deter Polaco from engaging in illegal conduct
shortly after his release. "Although the district court could
have made its rationale more explicit," there is enough information
in the record for us to evaluate the district court's reasoning
from what it said and did. United States v. Vázquez-Martínez, 812
F.3d 18, 24 (1st Cir. 2016) (reasonably inferring from the district
court's discussion of deterrence and the one-and-a-half years
between the defendant's commencement of supervised release and new
criminal conduct the court's "concern that a Guidelines-range
sentence did not adequately take into account [the defendant's]
potential for recidivism"). Again, our case law indicates that a
district court does not abuse its discretion by imposing an upward
variance for repeated criminal activity that occurs shortly into
an individual's supervised release term. See id.; cf. United
States v. Vázquez-Vázquez, 852 F.3d 62, 66 (1st Cir. 2017).
Against this backdrop, the district court gave
permissible weight to a factor already accounted for in the
-13- guidelines insofar as it relied on the inherent dangerousness of
machineguns. Importantly, in varying upward, the court did not
give dispositive weight to that factor alone but rather considered
it along with the other valid and individualized factors we've
just outlined. Cf. United States v. Flores-Machicote, 706 F.3d
16, 24 (1st Cir. 2013) (finding that sentencing court made an
individualized assessment of defendant's case when it "addressed
the nature and circumstances of the particular offense [and] its
seriousness" and "paid particular heed both to the fact that the
defendant's weapon was 'a nine millimeter, semi-automatic pistol
with a high capacity magazine,' and to the defendant's likely
recidivism").
For similar reasons, the district court did not abuse
its discretion to the extent it considered "community factors," by
which Polaco means the alleged prevalence of machineguns and gun
violence in Puerto Rico. Polaco asserts that the government's
references to homicide rates "clearly advised and moved the
district court to allude to Puerto Rico's gun problems, murder
rate and armed violent crimes to support a sentence 21 months above
the guideline sentencing range." And yet, he states, those factors
were "completely unrelated to [him] or his case," which involved
no allegations of past or present violence.
We have deemed "well-settled" the principle that the
district court "may take into account the characteristics of the
-14- community in which the crime took place when weighing the offense's
seriousness and the need for deterrence." United States v.
Zapata-Vázquez, 778 F.3d 21, 23 (1st Cir. 2015). That is because
"the incidence of particular crimes in the relevant community
appropriately informs and contextualizes the . . . need for
deterrence." Flores-Machicote, 706 F.3d at 23. At the same time,
the court still must assess the § 3553(a) factors "in case-specific
terms." Id.; see also United States v. Rivera-González, 776 F.3d
45, 50–51 (1st Cir. 2015) (finding "the high incidence of violent
crime in Puerto Rico" to be an appropriate consideration at
sentencing but explaining that "a sentencing court's appraisal of
community-based considerations does not relieve its obligation to
ground its sentencing determination in individual factors related
to the offender and the offense"). Indeed, a district court's
"emphasis on factors that are not specifically tied to either the
offender or the offense of conviction . . . may . . . go too far."
Flores-Machicote, 706 F.3d at 24. It is "possible for a sentencing
judge to focus too much on the community and too little on the
individual and, thus, impose a sentence that cannot withstand the
test of procedural reasonableness." Id.; see also Rivera-Berríos,
968 F.3d at 136-37 (citing Flores-Machicote, 706 F.3d at 21, 23).
To the extent the district court emphasized community
characteristics here, it did not do so "at the expense of also
weighing the specific circumstances of [Polaco's] case."
-15- Zapata-Vázquez, 778 F.3d at 24. The government argued both in its
sentencing memorandum and at the sentencing hearing that, although
"social background cannot be viewed in a void," the district court
could consider rates of armed violent crime in Puerto Rico when
"combined with specific facts of [Polaco's] offense[s]." It then
pointed to Polaco's "carrying a machinegun with over 100 rounds of
ammunition and multiple high-capacity magazines in broad daylight
in a retail area of Puerto Rico" as reasons for an upward variance.
In turn, at the sentencing hearing, the court referenced the
ammunition, loaded high-capacity magazines, and its concern that
those magazines contribute to the firearm's lethalness. From these
comments and the government's arguments, we can deduce that the
court based its variance in part on those factors, that is, the
particulars of Polaco's case. See Montero-Montero, 817 F.3d at
37-38 (explaining that we can discern the rationale for a sentence
from the parties' oral and written arguments and the sentencing
colloquy).
Because the district court did not predicate its
variance merely on the inherent dangerousness of machineguns or on
community considerations to the exclusion of the circumstances of
Polaco's offenses, the sentence is not procedurally unreasonable.
B. Substantive Reasonableness
We now turn to Polaco's substantive reasonableness
claim. Echoing his procedural claim, Polaco argues that the upward
-16- variance here is substantively unreasonable because his conduct
falls squarely within the heartland of machinegun possession cases
covered by the guidelines, and there is "nothing [in] the record
that suggests that his sentence could not be sheltered within the
guideline[] [range]."
Before turning to the merits of this claim, we address
a threshold issue regarding the standard of review. At his
hearing, Polaco advocated for a sentence within the guideline
sentencing range calculated by the PSR. "[W]e have consistently
held that by arguing for a shorter sentence before the district
court, a defendant preserves a challenge to the substantive
reasonableness of his sentence on appeal." United States v.
Melendez-Hiraldo, 82 F.4th 48, 56 (1st Cir. 2023); see also United
States v. Rand, 93 F.4th 571, 579 (1st Cir. 2024); United States
v. Rodriguez-Monserrate, 22 F.4th 35, 40-41 (1st Cir. 2021).
The government agrees, but only to a point. It concurs
that Polaco preserved a general claim that his sentence was too
long, but it contends that simply asking for a shorter sentence is
insufficient to preserve his specific substantive reasonableness
argument on appeal -- that there was no plausible rationale for an
upward variance when the record shows his case is no different
than the run-of-the-mill machinegun possession offense.
We need not decide if Polaco's specific substantive
reasonableness argument is preserved by his request for a sentence
-17- shorter than the one the district court pronounced. Even if we
assume it was preserved and therefore abuse-of-discretion review
applies, we conclude that Polaco cannot succeed on his claim. See
United States v. Vargas-Martinez, 15 F.4th 91, 102 n.7 (1st Cir.
2021) (assuming favorably for defendant that advocating for a
shorter sentence preserved his substantive reasonableness claim
that the district court relied exclusively on the elements of the
offense to justify an upward variance).
As always, we begin by setting out the governing legal
principles. In conducting our substantive-reasonableness inquiry,
we keep in mind that "[t]here is no one reasonable sentence in any
given case but, rather, a universe of reasonable sentencing
outcomes." United States v. Santiago-Lozada, 75 F.4th 285, 294
(1st Cir. 2023) (alteration in original) (quoting United States v.
Ortiz-Pérez, 30 F.4th 107, 113 (1st Cir. 2023)). As such, our
task is "to determine whether the sentence falls within this broad
universe." United States v. Rivera-Morales, 961 F.3d 1, 21 (1st
Cir. 2020). To make that determination, "we look for the hallmarks
of a substantively reasonable sentence: 'a plausible sentencing
rationale and a defensible result.'" United States v. Díaz-Lugo,
963 F.3d 145, 157 (1st Cir. 2020) (quoting United States v. Martin,
520 F.3d 87, 96 (1st Cir. 2008)).
When, as here, the district court imposes a sentence
above the guideline sentencing range, it "must justify a variance
-18- of the magnitude in question," Martin, 520 F.3d at 91, and "the
rationale underlying the upward variance should 'be rooted either
in the nature and circumstances of the offense or the
characteristics of the offender,'" United States v. Flores-Nater,
62 F.4th 652, 656-57 (1st Cir. 2023) (quoting Martin, 520 F.3d at
91). Further, when the court relies on a factor that is already
accounted for in the guideline range to vary upward, it "must
articulate specifically the reasons that this particular
defendant's situation is different from the ordinary situation
covered by the guidelines calculation." United States v.
Guzman-Fernandez, 824 F.3d 173, 177 (1st Cir. 2016) (quoting United
States v. Zapete-García, 447 F.3d 57, 60 (1st Cir. 2006)).
We look to various aspects of the record in evaluating
the district court's rationale. We consider its "contemporaneous
oral explanation of the sentence, its near-contemporaneous written
statement of reasons, and what fairly can be gleaned by comparing
what was argued by the parties or proffered in the [PSR] with what
the sentencing court ultimately did." Martin, 520 F.3d at 93.
With this context in mind, we turn to Polaco's claim.
To recap: Polaco's guideline sentencing range was forty-one to
fifty-one months, and the district court imposed a
seventy-two-month sentence. The chosen sentence was therefore
twenty-one months above the top-end of the guideline range, which
equals about a forty percent variance. We conclude that the
-19- district court provided a plausible rationale for a variance of
this magnitude.
As we've explained, we can infer that the district court
based its variance in part on the 111 rounds of ammunition and on
the four extended and loaded magazines found with the gun. Under
our precedent, a sentencing court may consider both the amount of
ammunition and the number of high-capacity magazines as
aggravating factors not already accounted for by the guidelines if
they exceed what is consistent with simple possession.5 See, e.g.,
United States v. Bruno-Campos, 978 F.3d 801, 806 (1st Cir. 2020)
(explaining that defendant's possession of a "substantial amount
of ammunition [eighty-nine rounds] packed into four separate
magazines, two of which were high-capacity" was not factored into
section 2K2.1). Accordingly, we have affirmed similar upward
variances when the district court relied on an amount of ammunition
or number of high-capacity magazines comparable to that present
here as part of its justification for the variance. See, e.g.,
United States v. Morales-Negrón, 974 F.3d 63, 67 (1st Cir. 2020)
(upholding twenty-four-month variance for felon-in-possession and
5As a reminder, the guideline provision that covers Polaco's offenses of conviction, section 2K2.1, applies to an individual who possessed "a firearm," which, in turn, includes "a machinegun," defined as "any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger." U.S.S.G. § 2K2.1(a)(4)(B)(i)(II), (ii)(I); 26 U.S.C. § 5845(a), (b).
-20- machinegun-possession offenses after finding that "the substantial
amount of ammunition [fifty-seven rounds] and
multiple-high-capacity magazines [four] involved in the offense"
constituted one of "several plausible rationales for the upward
variance"); Díaz-Lugo, 963 F.3d at 155 (affirming
twenty-three-month variance based in part on court's expressed
concern over the fact that the defendant was arrested with two
machineguns and four high-capacity magazines, facts that
"remove[d] th[e] case from the heartland of the applicable
guideline provisions" for machinegun possession); United States v.
Contreras-Delgado, 913 F.3d 232, 243 (1st Cir. 2019) (determining
that district court provided an individualized rationale for its
sixteen-month variance in part because it considered that "the
machine gun possession offense . . . involved a substantial amount
of ammunition [seventy-seven rounds] and multiple high-capacity
magazines [three], heightening the risk posed to the public").
Further, the government's arguments considered alongside
the court's invocation of the Chapter Four guidelines commentary
indicate the court adopted the government's theory that a
heightened need for deterrence existed in this case, given that
Polaco committed new, firearms offenses just three months into his
term of supervised release. This theory goes beyond the mere fact
that Polaco had a prior criminal history, which already was
calculated and factored into his guideline sentencing range. Thus,
-21- for all these reasons, the court did not, as Polaco contends, rest
its rationale solely on factors already accounted for in the
guidelines. See United States v. Del Valle-Rodríguez, 761 F.3d
171, 177 (1st Cir. 2014) (finding no abuse of discretion when the
upward variance was "anchored in a plausible, albeit not
inevitable, view of the circumstances sufficient to distinguish
this case from the mine-run of cases covered" by the guidelines).
The court also based Polaco's sentence on facts "to which
it alluded in open court immediately before imposing the sentence,
and which were relevant to the nature and circumstances of the
offense and to [Polaco's] characteristics." Vargas-Martinez, 15
F.4th at 103. In addition to considering the ammunition, loaded
magazines, and perceived need for deterrence to address repeated
criminal behavior at the outset of a supervised release term, the
district court appropriately emphasized the dangerousness of the
firearm and community factors, for the reasons we explained above.
Taken collectively, these factors "add up to a plausible
rationale." Martin, 520 F.3d at 91.
Finally, based on our precedent, the sentence imposed
here is a defensible result, given those factors the court cited.
See Morales-Negrón, 974 F.3d at 67. Polaco argues, however, that
a twenty-one-month variance is unwarranted in light of his
mitigating factors, which include being a provider for his family
and his full-time employment at the time of the offenses. To the
-22- extent he contends that the district court did not consider his
mitigating factors, the district court noted that Polaco was
employed at the auto-repair shop before he was arrested. See
García-Pérez, 9 F.4th at 52 (finding that sentencing court
demonstrated that it considered a mitigating factor by mentioning
it). It is true that the district court did not expressly refer
to Polaco's status as a breadwinner for his family. And we have
held that a court fails to offer a case-specific rationale for its
sentence when it entirely ignores the "dominant mitigation
argument" that a defendant relies on in advocating for a particular
sentence. See Colón-Cordero, 91 F.4th at 55 (finding that
sentencing court failed to make an individualized assessment of
defendant when "the mitigating individual characteristic," the
defendant's intellectual disability, "and the argument about it
were completely ignored"). By contrast, here Polaco "trains his
gaze on a sentencing court's failure to address one of his
[mitigation] arguments," but "our caselaw is clear that, in fact,
[a court] need not 'address every argument that a defendant
advances in support of his preferred sentence.'" Id. (quoting
Rivera-Morales, 961 F.3d at 19). The fact that Polaco provided
for his family was discussed in the PSR and mentioned by his
counsel at the sentencing hearing. "On this record, the more
appropriate inference" from the lack of express mention of this
fact "is that, in the court's view, the mitigating factor[] that
-23- [Polaco] highlighted [was] unpersuasive," not ignored. United
States v. Santa-Soler, 985 F.3d 93, 99 (1st Cir. 2021); see also
United States v. Lozada-Aponte, 689 F.3d 791, 793 (1st Cir. 2012).
Although Polaco also disagrees with how the district court weighed
the mitigating and aggravating factors here, that is not enough to
show an abuse of discretion. See United States v. Serrano-Delgado,
29 F.4th 16, 30 (1st Cir. 2022) (explaining that "a sentence is
not substantively unreasonable simply because the court chose not
to attach to certain of the mitigating factors the significance
that the defendant thinks they deserved" (cleaned up) (quoting
United States v. González-Rodríguez, 859 F.3d 134, 140 (1st Cir.
2017))).
Finding a plausible rationale and defensible result on
this record, we conclude that Polaco's sentence was substantively
reasonable.
IV. CONCLUSION
For all these reasons, we affirm.
-24-