United States v. José Francisco Rodríguez-Reyes

United States Court of Appeals
For the First Circuit
No. 18-1217
UNITED STATES,
Appellee,
v.
JOSÉ FRANCISCO RODRÍGUEZ-REYES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Torruella, Selya, and Lynch,
Circuit Judges.
Luis A. Guzmán Dupont for appellant.
David C. Bornstein, Assistant United States Attorney, with
whom Mariana E. Bauzá-Almonte, Assistant United States Attorney,
Chief, Appellate Division, Thomas F. Klumper, Assistant United
States Attorney, Senior Appellate Counsel, and Rosa Emilia
Rodríguez-Vélez, United States Attorney, were on brief, for
appellee.
June 5, 2019

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LYNCH, Circuit Judge. This is a challenge to the
imposition of an upwardly variant sentence of thirty-six months'
imprisonment, following a guilty plea by José Francisco Rodríguez-
Reyes (Rodríguez) to a charge of being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). The firearm was
an AM-15 multi-caliber assault rifle which accepted 5.56
millimeter military-style ammunition. Rodríguez tried
unsuccessfully to escape arrest. Rodríguez did not challenge
either the procedural or substantive reasonableness of the
sentence in the district court.
As to procedural reasonableness, Rodríguez argues on
appeal that the district court: (1) erred in the course of
sentencing by discussing Rodríguez's arrests that did not result
in convictions; (2) failed to consider adequately the 18 U.S.C.
§ 3553(a) factors; and (3) erred in varying upward from the
government's sentencing recommendation. As to substantive
reasonableness, Rodríguez argues that (1) the district court did
not sufficiently consider unspecified mitigating factors and the
reasons for the government's sentencing recommendation, and (2)
the sentence imposed was longer than necessary.
Finding no reversible error, we affirm Rodríguez's
sentence.

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I.
"When a sentencing appeal follows a guilty plea, 'we
glean the relevant facts from the change-of-plea colloquy, the
unchallenged portions of the presentence investigation report
. . . and the record of the disposition hearing.'" United States
v. Dávila-González, 595 F.3d 42, 45 (1st Cir. 2010) (quoting United
States v. Vargas, 560 F.3d 45, 47 (1st Cir. 2009)).
A. Facts of the Offense
On February 23, 2017, officers from the Puerto Rico
Police Department (PRPD) received information about a future
firearm transaction, including the location, date, time, and
description of vehicles likely to be involved. PRPD officers,
along with agents from the federal Department of Homeland Security
(DHS), during surveillance observed Rodríguez and two other men
standing near the rear hatch of a Jeep Cherokee looking at a rifle.
Rodríguez drove away in the Jeep and the police officers and agents
followed by car; Rodríguez then parked and entered the car of
another man involved in the attempted firearm transaction. The
men noticed the police officers and agents and fled by vehicle.
Their vehicle eventually crashed, and the officers detained the
two men. After Rodríguez and the other man consented to a search
of the vehicles, the officers and agents found an AM-15 multi-
caliber rifle, which Rodríguez admitted to purchasing online and
was planning to sell for $2,000.

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B. Procedural History
On March 8, 2017, a federal grand jury in Puerto Rico
indicted Rodríguez on one count of being a felon in possession of
a firearm and one count of being an unlawful drug user in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1)
and (3), as well as aiding and abetting a co-defendant in the same
two counts, in violation of 18 U.S.C. § 2. Rodríguez had been
convicted of prior felony charges. On May 11, 2017, Rodríguez
pleaded guilty to the one count of being a felon in possession of
a firearm, and the plea agreement provided for a total offense
level (TOL) of twelve.
The Presentence Investigation Report (PSR) followed the
parties' calculations from the plea agreement, with a TOL of twelve
resulting from a base level of fourteen and the removal of two
levels for acceptance of responsibility. See U.S.S.G. § 3E1.1(a).
Rodríguez had three prior convictions: two state illegal drug
possession convictions in Texas (one for marijuana, one for both
marijuana and cocaine), and a federal conviction for conspiracy to
commit mail fraud and bank fraud in Puerto Rico. This gave
Rodríguez a criminal history category (CHC) of III. A TOL of
twelve and a CHC of III led to a guideline imprisonment range of
fifteen to twenty-one months.
The PSR also listed, as required, six arrests which did
not lead to convictions (but also did not lead to acquittals),

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four of which related to Rodríguez's illegal drug possession. 1 See
Fed. R. Crim. P. 32(d)(2)(A)(i) (requiring that the PSR contain
information on "the defendant's history and characteristics,
including . . . any prior criminal record"). The drug arrests are
discussed below. The PSR also stated that "[i]n this case a
variance [may be] considered since the defendant has a high risk
of recidivism." That risk was evidenced by, inter alia,
Rodríguez's prior criminal history (which took three pages of the
PSR to recount), the fact that the offense of conviction took place
within five months of his completion of a supervised release term
from his federal mail and bank fraud imprisonment, and a pending
arrest warrant against him in El Paso, Texas for illegal possession
of marijuana. By the time of completion of the PSR, the pending
Texas "charge was dismissed" because Rodríguez "was convicted in
another case."
The PSR also described a history of illegal drug use by
Rodríguez spanning more than twenty-five years. Rodríguez stated
that he began smoking marijuana at the age of twelve and smoked
marijuana approximately five times per day, having returned to
drug use in 2002 after a one-year break following a drug treatment
1 These arrests were, in chronological order: a 2000
Puerto Rico controlled substances possession arrest; a 2000 Puerto
Rico unlicensed firearm possession arrest; a 2005 Puerto Rico
"conjugal threats" arrest; two 2009 Texas marijuana possession
arrests; and a 2010 New York marijuana possession arrest.

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program (completed pursuant to a 2000 Puerto Rico drug charge).
Indeed, Rodríguez tested positive for marijuana on February 27,
2017, shortly after his arrest in the present case. He also stated
that he began using cocaine and Percocet when he was twenty-six,
in 2004 or 2005. The PSR also stated that Rodríguez and his then-
wife separated in 2005 "[a]s a result" of Rodríguez's "mari[j]uana
addiction."
In his sentencing memorandum, Rodríguez did not object
to the PSR or any facts within the PSR, including the facts as to
the disposition of his arrests and his drug use (he did say that
some of his debt had been paid off). ("The Pre-Sentence Report
was discussed with [Rodríguez] and there are no objections.") His
sentencing memorandum acknowledged that Rodríguez "ha[d] been
using Mari[j]uana since age 12 on a daily basis" and his drug use
"ha[d] escalated to the use of Cocaine and Percocet."
C. Sentencing Hearing
In his sentencing memorandum and at the sentencing
hearing, Rodríguez requested a sentence of fifteen months'
imprisonment, at the bottom of the guidelines range. Rodríguez's
counsel expressly referred to the sentencing memorandum at the
hearing. He did not dispute the PSR's calculations. At the
sentencing hearing, the government requested a sentence of twenty-
one months' imprisonment, at the top of the guidelines range. It
explained the disposition of Rodríguez's arrests that had not led

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to convictions, and Rodríguez's counsel stated that he had no
objections to the government's explanation.
The district court accepted the PSR's calculations of
the TOL, the CHC, and the guidelines range. The district court
then listed Rodríguez's prior arrests that did not lead to
convictions, accurately describing the PSR and the government's
explanation of the disposition of these arrests.
Explaining why it was following the recommendation of
the probation officer and imposing an upwardly variant sentence
(as recommended by the probation officer), the district court gave
a number of reasons and justifications. To start, it stated that
"neither [side's] sentence recommendation reflects the seriousness
of the offense, promotes respect for the law, protects the public
from further crimes by [Rodríguez], or addresses the issues of
deterrence and punishment." These statements track closely the
sentencing factors laid out at 18 U.S.C. § 3553(a)(2)(A), (B) and
(C). 2 The district court stated that it was also "taking into
consideration that [Rodríguez's] criminal history category is
underrepresented."
2 In turn: "(A) to reflect the seriousness of the offense,
to promote respect for the law, and to provide just punishment for
the offense; (B) to afford adequate deterrence to criminal
conduct; (C) to protect the public from further crimes of the
defendant . . . ." 18 U.S.C. § 3553(a)(2).

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The district court noted Rodríguez's "encounters with
the law since he was 21 years old," as well as Rodríguez's
"recidivism, his drug use history, [and] his lack of steady
employment." The drug use described was that noted earlier, as
well as Rodríguez's positive test for marijuana on the date of his
arrest for the offense of conviction. The district court also
stated that the arrest for the present firearm offense came "less
than five months after having completed his supervised release
term" for his federal wire and bank fraud conviction. The district
court further stated that it was "taking into consideration the
nature of the weapon involved, an assault rifle, which accepts
5.56 millimeter military ammunition."
After describing these reasons for the variance, the
district court then imposed an upwardly variant sentence of thirty-
six months' imprisonment. That variant sentence is well under the
statutory maximum of 120 months. See 18 U.S.C. § 924(a)(2). At
the sentencing hearing, Rodríguez did not object to the sentence
or challenge its substantive or procedural reasonableness. As
Rodríguez requested, the court recommended that he be placed in an
institution in Florida.
Rodríguez timely appealed.

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II.
"In sentencing appeals, appellate review is
bifurcated." 3 United States v. Ruiz-Huertas, 792 F.3d 223, 226
(1st Cir. 2015). We first consider whether the sentence is
procedurally reasonable, and then consider whether it is
substantively reasonable. E.g., United States v. Clogston, 662
F.3d 588, 590 (1st Cir. 2011).
A. Procedural Reasonableness
Because Rodríguez did not raise any procedural
objections to his sentence at the district court, as he
acknowledges, this court's review is for plain error. United
States v. Soto-Soto, 855 F.3d 445, 448 (1st Cir. 2017). Plain
error requires "four showings: (1) that an error occurred (2) which
was clear or obvious and which not only (3) affected the
defendant's substantial rights, but also (4) seriously impaired
the fairness, integrity, or public reputation of judicial
proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st Cir.
2001); see also United States v. Romero, 906 F.3d 196, 205 (1st
Cir. 2018) (requiring showings of "(1) error, (2) plainness,
3 Rodríguez's plea agreement contained a waiver of appeal
provision, which was to be operative provided that he was sentenced
according to the agreement's "terms, conditions, and
recommendations." As Rodríguez correctly argues, the sentence
imposed exceeded the sentence recommended in the plea agreement,
and so he can appeal. See, e.g., United States v. Fernández-
Cabrera, 625 F.3d 48, 51 (1st Cir. 2010). The government does not
argue otherwise.

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(3) prejudice, and (4) an outcome that is a miscarriage of justice
or akin to it" (quoting United States v. Tanco-Pizarro, 892 F.3d
472, 478-79 (1st Cir.), cert. denied 139 S. Ct. 354 (2018))).
We start with Rodríguez's argument about the district
court's reference to Rodríguez's arrests that did not lead to
convictions. We then turn to Rodríguez's arguments about the
district court's allegedly inadequate consideration of the Section
3553(a) factors and the variance from the government's sentencing
recommendation.
1. The District Court Did Not Plainly Err in Considering
Rodríguez's Arrests Not Leading to Convictions as a
Matter Leading to an Upward Variance
Rodríguez argues that the district court erred in
"reciting" Rodríguez's six arrests that did not lead to
convictions. To the extent he is arguing that the court errs in
merely reciting an arrest record, he is flatly wrong. See United
States v. Mercer, 834 F.3d 39, 49–50 (1st Cir. 2016). So, we go
to the particulars.
The government stresses that the district court "relied
on other factors" beyond arrests "when it imposed the upward
variance." As to the arrests, the government argues that the four
drug arrests could be considered because they met the reliability
standard. That is because they were corroborated by a number of
uncontested facts in the PSR about Rodríguez's drug use. It points

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out that one charge was dismissed not "as a result of the evidence"
but based on a Puerto Rico speedy trial rule.
We start with an overview of the law pertinent to the
ability of the district court to impose an upward variance. The
statute itself says that "[n]o limitation shall be placed on the
information concerning the background, character, and conduct of
a person convicted of an offense which a court of the United States
may receive and consider for the purpose of imposing an appropriate
sentence." 18 U.S.C. § 3661. We have held that "[a]t sentencing,
a court is not bound by the rules of evidence but, rather, may
take into account any information that has sufficient indicia of
reliability." United States v. Díaz–Arroyo, 797 F.3d 125, 130 n.3
(1st Cir. 2015) (citing United States v. Tardiff, 969 F.2d 1283,
1287 (1st Cir. 1992)). The Guidelines so provide. See U.S.S.G.
§ 6A1.3(a). The "sentencing court has wide discretion to decide
whether particular evidence is sufficiently reliable to be used at
sentencing," United States v. Cintrón-Echautegui, 604 F.3d 1, 6
(1st Cir. 2010), which includes information contained in a
presentence report, United States v. Cruz, 120 F.3d 1, 2 (1st Cir.
1997) (en banc); see also United States v. Cyr, 337 F.3d 96, 100
(1st Cir. 2003) ("Generally, a PSR bears sufficient indicia of
reliability to permit the district court to rely on it at
sentencing." (quoting United States v. Taylor, 277 F.3d 721, 724
(5th Cir. 2001))).

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The government cites to our recent case, United States
v. Marrero-Pérez, 914 F.3d 20 (1st Cir. 2019), relying on it in
part and distinguishing it as to the outcome. Rodríguez did not
cite to Marrero-Pérez in briefing, but did at oral argument.
Marrero-Pérez involves an "upward departure," id. at 22,
not a variance, as here. Citing to a policy statement in the
Sentencing Guidelines about departures (a different category of
sentence which was at issue there), see U.S.S.G. § 4A1.3, Marrero-
Pérez stated that "error occurs when a district judge relies on an
arrest report, without some greater indicia of reliability that
the conduct underlying the arrest took place," 914 F.3d at 24
(emphasis added). 4 This statement was based on Guidelines language
and is consistent with the policy statement, titled "Departures
Based on Inadequacy of Criminal History Category." U.S.S.G.
§ 4A1.3. Marrero-Pérez held, under plain error review, that in
the context of an upward departure, arrests supported by reliable
information that the conduct occurred could be considered, but the
arrests at issue there were not so supported, or even explained in
the PSR or otherwise. 914 F.3d at 24.
4 At oral argument, Rodríguez focused on the phrase
"independent proof of conduct" in Marrero-Pérez, rather than "some
greater indicia of reliability." 914 F.3d at 22, 24. The former
phrase was not meant to proscribe any "weight" given to arrests,
such as "a collection of arrests," id., or consideration of conduct
underlying arrests. Nor was it meant to create a new rule that
arrests could not be mentioned by a sentencing court. See Mercer,
834 F.3d at 49–50.

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We have earlier noted concern with "accord[ing] any
significance to a record of multiple arrests and charges without
conviction unless there is adequate proof of the conduct upon which
the arrests or charges were predicated." United States v. Cortés-
Medina, 819 F.3d 566, 570 (1st Cir. 2016) (emphasis added); see
United States v. Rondón-García, 886 F.3d 14, 25-26 (1st Cir. 2018)
(finding no clear error in a district court's reliance on an arrest
record for an "upward departure," where the defendant had "no prior
convictions"); United States v. Gallardo-Ortiz, 666 F.3d 808, 815
(1st Cir. 2012) ("We have cautioned against district courts relying
on mere arrests as indicative of a defendant's character to justify
an upward departure from the GSR since a criminal charge alone
does not equate with criminal guilt of the charged conduct."
(emphasis added)). Reliance on bare arrests -- unexplained in the
PSR or elsewhere in the district court record and "not buttressed"
by "some greater indicia of reliability" -- can indeed be
problematic, at least for an upward departure. Marrero-Pérez, 914
F.3d at 22, 24. But as Marrero-Pérez also said, "a reasonable
person might in particular circumstances assign some weight to a
collection of arrests." Id. at 22; see id. at 23 (noting that
"recidivist behavior" is a "proper consideration[] at
sentencing").
It is not wholly clear from the sentencing transcript
whether the district court relied in part on the arrests, or

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instead "merely referred to [the defendant's] dismissed charges in
the course of relying on certain conduct that took place in
connection with the dismissed charges." Mercer, 834 F.3d at 50.
Even if we assume the district court here relied in part on the
prior illegal drug possession arrests and that Marrero-Pérez
squarely applies to this situation of an upward variance rather
than a departure under U.S.S.G. § 4A1.3(a), 5 there was no plain
error.
First and most importantly, other "indicia of
reliability" support that Rodríguez engaged in the conduct charged
underlying the four drug possession arrests that did not lead to
5 Beyond the departure/variance distinction, discussed
infra, Marrero-Pérez involved a particular set of facts distinct
from this case. In Marrero-Pérez, the past arrests recounted,
"usually involving at worst trivial conduct," lacked corroborating
evidence "set forth in undisputed portions of the PSR." 914 F.3d
at 22, 24. There, the district court had discussed the defendant's
alleged "utter disregard for the law," in part based on the
unsupported arrest record, and listed the exact number of arrests
and history of warrants. Id. at 22. Further, Marrero-Pérez relied
in part on prudential concerns about "still not fully explained
material submitted ex parte by the probation officer to the
[district] court concerning certain outstanding warrants." Id. at
25.
Here, in contrast, there were no ex parte submissions by
the probation officer. The arrests mentioned by the district court
here did not involve "trivial conduct." Corroborating evidence
about consistent drug use was set forth clearly in the PSR and has
never been disputed. Further, the district court did not make any
explicit comment about Rodríguez's guilt based on arrests, see id.
at 23, instead mentioning only generally that it was "taking into
consideration that [Rodríguez's] criminal history category is
underrepresented."
Despite these distinct facts, the result here is
consistent with Marrero-Pérez.

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convictions. The PSR -- to which Rodríguez expressly did not
object -- discussed a range of illegal drug use by Rodríguez, 6 as
did his own sentencing memorandum. As said, Rodríguez stated that
he began smoking marijuana at the age of twelve, reverted to drug
use in 2002 after a one-year break following a drug treatment
program (completed in order to expunge his 2000 Puerto Rico drug
arrest), and smoked marijuana approximately five times per day.
Rodríguez tested positive for marijuana on February 27, 2017,
shortly after his arrest in the present case. This covers the
time period for all of Rodríguez's arrests for drug possession
that did not lead to convictions (again, in January 2000, January
and February 2009, and October 2010). Rodríguez's sentencing
memorandum admitted that his "addiction has escalated [from
marijuana] to the use of Cocaine and Percocet."
This provides "some greater indicia of reliability,"
beyond the mere fact of arrest, "that the conduct underlying the
arrest[s] took place." Marrero-Pérez, 914 F.3d at 24. Even
leaving aside the district court's consideration of the Section
3553(a) factors, discussed below, and the fact that these arrests
and charges also went to the history and characteristics of
Rodríguez, see United States v. Flores-Machicote, 706 F.3d 16, 21
6 One of the convictions, the second Texas marijuana
conviction, was charged as a felony and involved possession of
about twenty-six pounds of marijuana.

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(1st Cir. 2013), the district court did not rely merely on a bare
arrest record.
Second and relatedly, we have held that a sentencing
court may consider arrests not leading to convictions where
"[t]here is no reason . . . given [defendant's] failure to contest
the facts [in the PSR] and the absence of any acquittal, to doubt
that these acts occurred." United States v. Tabares, 951 F.2d
405, 411 (1st Cir. 1991) (Breyer, J.). As said, Rodríguez did not
dispute facts contained in the PSR or explained by the government
at the sentencing hearing. All of Rodríguez's dismissed or
expunged charges mentioned by the district court were dismissed or
expunged "not because of any finding on the merits of the case[s],
but for other reasons." Id. The 2000 charge for drug possession
was expunged because Rodríguez had completed a diversionary drug
treatment program. The charges from the two 2009 arrests for
marijuana possession in Texas were dismissed on petition of the
government due to Rodríguez's conviction on another 2009 marijuana
possession charge. The 2010 New York marijuana charge was
adjourned in contemplation of dismissal, and Rodríguez was
arrested the next day on federal bank and wire fraud charges.
As to the Puerto Rico weapons possession arrest, the
government said, and Rodríguez's counsel agreed at the sentencing
hearing, that the charges were dismissed due to the speedy trial

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rules in Puerto Rico. 7 The district court most certainly did not
consider any arrests which led to acquittals.
Third, even beyond underrepresentation of criminal
history, the district court focused on a number of facts about the
offense of conviction and Rodríguez that were clearly relevant to
Section 3553(a) factors and to an upward variance, including: the
type of weapon involved, an AM-15 "assault rifle" ("nature and
circumstances of the offense"); risk of recidivism and commission
of this crime shortly after the end of a supervised release term
("protect[ing] the public from further crimes of the defendant");
and Rodríguez's consistent illegal drug use and lack of steady
employment ("history and characteristics of the defendant"). 18
U.S.C. § 3553(a). All of these provided additional reasonable
justifications for an upward variance. We have affirmed in
numerous cases upward variances based on district courts'
consideration of such factors. See, e.g., United States v. Ortiz-
Álvarez, 921 F.3d 313, 316 (1st Cir. 2019) (involvement of an
"assault rifle"); United States v. Bermúdez–Meléndez, 827 F.3d
160, 164 (1st Cir. 2016) (involvement of an "assault rifle");
Flores-Machiote, 706 F.3d at 24 ("likely recidivism"); United
7 The record is not clear as to the reason for the
dismissal of the conjugal threats charge, but the PSR states that
it was dismissed, and the government stated (without objection)
that further records from this arrest had been destroyed due to a
timely motion by Rodríguez filed pursuant to Puerto Rico law.

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States v. Santini-Santiago, 846 F.3d 487, 491 (1st Cir. 2017)
("drug use"); United States v. Rivera-González, 776 F.3d 45, 50
(1st Cir. 2015) ("employment record").
There was no plain error by the district court here. 8
2. This Case Involves a Variance Under 18 U.S.C. § 3553(a),
Not a "Departure" Under U.S.S.G. § 4A1.3
We have explained why there is no plain error here and
that this case is consistent with Marrero-Pérez. We add that there
is an important structural distinction between this case and
Marrero-Pérez that merits some discussion.
Marrero-Pérez relied substantially on a policy statement
concerning upward departures, as specifically defined in the
Guidelines. 914 F.3d at 22; see U.S.S.G. § 4A1.3(a); id. § 1B1.1
n.1(F)(2). This policy statement states in part that "[i]f
reliable information indicates that the defendant's criminal
history category substantially under-represents the seriousness of
the defendant's criminal history or the likelihood that the
defendant will commit other crimes, an upward departure may be
8 "Plain error review requires us to reverse only where a
lower court's error is clear or obvious in light of the prevailing
law, but 'Cortés-Medina held only that the law on this question
[consideration of arrests] was unclear.'" Rondón-García, 886 F.3d
at 26 (quoting United States v. Delgado-Sánchez, 849 F.3d 1, 13
(1st Cir. 2017)). So, even (wrongly) reading Marrero-Pérez as
broadly as Rodríguez sought at oral argument, the district court's
reference to the prior arrests would not amount to plain error
based on the state of First Circuit law at the time of Rodríguez's
sentencing.

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warranted." Id. § 4A1.3(a)(1). More importantly for present
purposes, it states that "[a] prior arrest record itself shall not
be considered for purposes of an upward departure under this policy
statement." 9 Id. § 4A1.3(a)(3) (emphasis added). The Application
Notes to the Guidelines state that "Departure" means, "for purposes
of § 4A1.3 . . . assignment of a criminal history category other
than the otherwise applicable criminal history category, in order
to effect a sentence outside the applicable guideline range." Id.
§ 1B1.1 n.1(F)(2).
Here, in contrast with Marrero-Pérez, the district court
was varying upward, not departing, and referred specifically to
its use of the Section 3553(a) factors. There was no assignment
of a higher criminal history category, nor any mention of a
departure.
There are significant differences between a departure
and a variance. "In federal criminal sentencing, the term
'departure' is a term of art." United States v. Román-Díaz, 853
F.3d 591, 596 (1st Cir. 2017). As we have stated, quoting the
Supreme Court in part,
[a] 'departure,' as explained by the Supreme
Court, 'is a term of art under the Guidelines
9 This policy statement does not purport to address upward
variances. And in United States v. Martin, we recognized that
"[p]olicy statements issued by the Sentencing Commission . . .
normally are not decisive as to what may constitute a permissible
ground for a variant sentence in a given case." 520 F.3d 87, 93
(1st Cir. 2008).

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and refers only to non-Guidelines sentences
imposed under the framework set out in the
Guidelines.' Variant sentences, by contrast,
. . . result from a court's consideration of
the statutory sentencing factors enumerated in
18 U.S.C. § 3553(a).
United States v. Aponte-Vellón, 754 F.3d 89, 93 (1st Cir. 2014)
(internal citations omitted) (quoting Irizarry v. United States,
553 U.S. 708, 714 (2008)). Other circuits have recognized this
departure/variance distinction. See, e.g., United States v.
Rodriguez, 855 F.3d 526, 532 n.7 (3d Cir. 2017) ("A 'departure' is
different from a 'variance.'"); United States v. Hernandez, 435 F.
App'x 873, 877 (11th Cir. 2011) (unpub.) ("On the record as a
whole, we conclude the district court imposed a discretionary
. . . upward variance based on the § 3553(a) factors, and not an
upward departure based on U.S.S.G. § 4A1.3(a)."); United States v.
Herrera-Zuniga, 571 F.3d 568, 586 (6th Cir. 2009) ("This Court has
recognized the distinction between sentencing departures under
U.S.S.G. § 4A1.3 and variances under 18 U.S.C. § 3553(a).");
United States v. Solis-Bermudez, 501 F.3d 882, 884 (8th Cir. 2007)
("[W]e have attempted to carefully distinguish between sentencing
departures, which are provided for in . . . USSG § 4A1.3, and
sentencing variances, which are . . . based on the factors
enumerated in 18 U.S.C. § 3553(a)."); United States v. Mejia-
Huerta, 480 F.3d 713, 721 (5th Cir. 2007) ("[A] sentencing court
may impose a non-Guidelines sentence, i.e., a 'variance', but not

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a 'departure,' if it calculates the proper sentencing range and
references the broad array of factors set forth in § 3553(a).").
Importantly, the policy statement, as to the "arrest record
itself," does not apply to a variance. U.S.S.G. § 4A1.3(a).
The variance here resulted, in part, from the district
court's determination that there was underrepresentation of the
criminal history (perhaps due to prior arrests and the conduct
underlying those arrests, perhaps due to facts underlying the prior
convictions). It is clear that, "[a]s part of the [18 U.S.C.
§ 3553(a)(1)] inquiry, a sentencing judge may consider whether a
defendant's criminal history score substantially underrepresents
the gravity of his past conduct." Flores-Machicote, 706 F.3d at
21. Indeed, "the very same factors that prompted the[] comments
[on underrepresentation] also fit well within the scope of
§ 3553(a): . . . the drug use and prior arrest[s] bore on 'the
characteristics of the defendant.'" Santini-Santiago, 846 F.3d at
491 (quoting 18 U.S.C. § 3553(a)(1)). So, underrepresentation
"might also relate to a departure, but a sentencing court may
'echo' a departure consideration as one factor in its analysis,
while still imposing a variance." United States v. Acevedo-López,
873 F.3d 330, 342 (1st Cir. 2017) (quoting Aponte-Vellón, 754 F.3d
at 93). And like in Mercer, because the conduct -- here, arrests
for illegal drug use -- underlying dismissed or expunged charges
"was set forth in undisputed portions of the PSR, the District

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Court was entitled to rely on that conduct when sentencing [the
defendant]," 834 F.3d at 50, even assuming the district court
indeed did so. 10
In Marrero-Pérez, we did not purport to restrict
district courts' use of the broad Section 3553(a) factors for a
variance. Marrero-Pérez also did not purport to overrule First
Circuit cases such as Martin, Tabares, and Mercer (respectively,
recognizing a sentencing court's discretion to disagree with
policy statements in the Guidelines in imposing a variant sentence;
affirming the use by a sentencing court of arrests not leading to
convictions where the defendant did not contest the conduct and
where there were no acquittals; and recognizing the district
court's entitlement to consider "conduct that took place in
connection with the dismissed charges" that was "set forth in
undisputed portions of the PSR"). See, e.g., United States v.
Viloria-Sepulveda, 921 F.3d 5, 9 (1st Cir. 2019) (citing Martin
positively); United States v. Vázquez, 724 F.3d 15, 30 n.12 (1st
Cir. 2013) (citing Tabares positively). Nor could it have done
so.
10 We do not suggest that only a bare arrest record, without
more reliable explanation of or support for the underlying conduct
and without consideration of the circumstances of disposition,
would be a valid basis for an upward variance under Section
3553(a). That issue is not presented on the record before us here.

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3. The District Court Adequately Considered the Section
3553(a) Factors
Next, Rodríguez argues that the district court did not
adequately consider the 18 U.S.C. § 3553(a) factors, and that
"[n]othing in the record specifically refers to any sentencing
factor." He is wrong.
"Failure to follow § 3553 results in prejudice
warranting reversal for plain error if the defendant shows a
reasonable probability that but for an obvious error the court
would have imposed a more favorable sentence." United States v.
Ortíz-Mercado, 919 F.3d 686, 690 (1st Cir. 2019).
The district court explicitly stated that it considered
the Section 3553(a) sentencing factors, and that statement is
"entitled to significant weight." United States v. Calderón-
Lozano, 912 F.3d 644, 648 (1st Cir. 2019) (quoting United States
v. Arroyo-Maldonado, 791 F.3d 193, 199 (1st Cir. 2015)). The
district court's explanation at the sentencing hearing, as we have
recounted, demonstrated ample consideration of Rodríguez's
"history and characteristics" as well as the "nature and
circumstances of the offense," 18 U.S.C. § 3553(a)(1), including
Rodríguez's education, and history of drug use, as well as "the
nature of the weapon involved, an assault rifle, which accepts
5.56 millimeter military ammunition." Further, the district court
stated that Rodríguez's firearm offense came "less than five months

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after having completed his supervised release term" for his federal
wire and bank fraud offense. Indeed, both the attempted sale of
an assault rifle and the timing of the offense are also surely
relevant to Rodríguez's likelihood of recidivism 11 and the threat
he posed to the safety of the community.
As we have said, "[f]ailure to follow § 3553 results in
prejudice warranting reversal for plain error if the defendant
shows a reasonable probability that but for an obvious error the
court would have imposed a more favorable sentence." Ortíz-
Mercado, 919 F.3d at 690. Rodríguez never argued, much less
demonstrated, that he was so prejudiced.
4. There Was No Plain Error in the District Court Varying
from the Government's Sentencing Recommendation
Rodríguez argues in passing that the district court
should have followed the government's sentencing recommendation,
because "the government ha[d] all the evidence . . . to consider
an adequate plea agreement." This argument is waived for lack of
developed argumentation. See United States v. Zannino, 895 F.2d
1, 17 (1st Cir. 1990).
In any event, a Rule 11(c)(1)(b) plea does not bind a
district court to the recommendation in a plea agreement. Fed. R.
11 In discussing "protect[ing] the public from further
crimes" and Rodríguez's "recidivism," the district court made no
further reference to any of the arrests not leading to convictions,
and so may well have been referring just to Rodríguez's multiple
drug convictions and bank and wire fraud conviction.

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Crim. P. 11(c)(1)(b); see United States v. Ubiles-Rosario, 867
F.3d 277, 294 (1st Cir. 2017) ("[T]he district court was not bound
by the parties' recommendations."); United States v. Garcia-Pupo,
845 F.2d 8, 10 (1st Cir. 1988) ("[J]udges cannot be bound by a
prosecutor's sentencing recommendation."). This was made clear to
Rodríguez by a magistrate judge at the change-of-plea hearing,
held about two months before the sentencing hearing. The choice
by the district court of a sentence other than one recommended by
the parties is not, in itself, error.
B. Substantive Reasonableness
The standard of review for challenges to substantive
reasonableness raised for the first time on appeal, between abuse
of discretion and plain error, remains an open question in this
circuit. See Ruiz-Huertas, 792 F.3d at 228. This question can be
bypassed here because Rodríguez does not prevail even assuming, in
his favor, that abuse of discretion applies.
To some extent blurring substantive and procedural
reasonableness, Rodríguez argues that the district court failed to
consider potentially mitigating factors (though he does not
clearly delineate what these factors were) and failed to consider
reasons for the government's request of twenty-one months. This
means, he argues, that the district court failed "to weigh the
Section 3353(a) factors and various mitigating circumstances

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properly." He also asserts that the sentence was longer than
necessary for the purposes of sentencing.
There is no "requirement that a district court afford
each of the section 3553(a) factors equal prominence," as "[t]he
relative weight of each factor will vary with the idiosyncratic
circumstances of each case." United States v. Dixon, 449 F.3d
194, 205 (1st Cir. 2006). Rodríguez does not even state what are
the "various mitigating circumstances" that the district court
allegedly ignored, so his argument fails on waiver. Regardless,
that Rodríguez disagrees with how the court weighed the factors
"does not make the sentence unreasonable." Clogston, 662 F.3d at
593.
Finally, as to Rodríguez's general contention that
"[t]he sentence imposed was longer than necessary to comply with
the purposes of sentencing," this argument also fails. The
district court offered a plausible rationale for the upward
variance based substantially on Section 3553(a) factors. The
sentence imposed, thirty-six months' imprisonment, was "within the
wide universe of reasonable sentencing outcomes" and that ends the
matter. Ruiz-Huertas, 792 F.3d at 229.
III.
Affirmed.

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