          United States Court of Appeals
                     For the First Circuit

No. 13-2137

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

             JOSÉ JUAN ARROYO-MALDONADO, a/k/a Colombia,
           a/k/a Víctor Dávila-Pérez, a/k/a Jesús Martínez
         Alejandro-Quintanilla, a/k/a Antonio Mejías, a/k/a
        Confesor Rodríguez, a/k/a Cristóbal Santiago-Colón,
       a/k/a Dennis Sánchez, a/k/a Edwin Gutiérrez-Lomardi,
         a/k/a Edwin Martínez-Aguayo, a/k/a Edwin Martínez,
        a/k/a Héctor González, a/k/a Héctor Santiago, a/k/a
      Jesús Martínez-Caballero, a/k/a José Arroyo-Maldonado,
        a/k/a José Díaz, a/k/a Juan Arroyo-Maldonado, a/k/a
  Juan Maldonado, a/k/a Pedro Ortiz, a/k/a Juan Mojica-Landrau,

                      Defendant, Appellant.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF PUERTO RICO
         [Hon. Daniel R. Domínguez, U.S. District Judge]


                              Before
                  Torruella, Lynch, and Lipez,
                         Circuit Judges.


     Lydia Lizarríbar-Masini, on brief for appellant.
     Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, and Rosa Emilia Rodríguez-Vélez, United States
Attorney, on brief for appellee.



                          July 1, 2015
            TORRUELLA, Circuit Judge. This case concerns a challenge

to the sentence imposed on José Juan Arroyo-Maldonado ("Arroyo-

Maldonado")       for    fraud.         Arroyo-Maldonado         challenges      the

reasonableness of his above Guidelines sentence of one hundred and

twenty months of imprisonment.              After careful consideration, we

affirm his sentence.

                                  I.    Background

            Because Arroyo-Maldonado pleaded guilty, our discussion

of the facts is drawn from the change-of-plea colloquy, the Pre-

Sentence Investigation Report ("PSR"), and the transcript of the

sentencing hearing.         See United States v. Cintrón-Echautegui, 604

F.3d 1, 2 (1st Cir. 2010).             From August 2010 to May 2011, Arroyo-

Maldonado, while incarcerated for other charges, led a scheme to

defraud financial institutions. Arroyo-Maldonado used prepaid cell

phones to contact co-defendants outside the Bayamón Penitentiary

and    instructed    them    to   prepare       false   checks   for   deposit   at

financial institutions in order to fraudulently purchase motor

vehicles or fraudulently pay off loan accounts.                  After the checks

were deposited, Arroyo-Maldonado would have other co-defendants

acquire the vehicles at car dealerships or from individuals selling

them    through     newspaper     classified       advertisements.        Arroyo-

Maldonado's actions were in violation of 18 U.S.C. § 1344(1) and

(2) and 18 U.S.C. § 1349.




                                          -2-
             Arroyo-Maldonado         pleaded    guilty      on    March   19,   2013,

pursuant to a plea agreement. The parties recommended that Arroyo-

Maldonado    be    sentenced     at    the     lower   end    of    the    applicable

Guidelines    Sentencing     Range      ("GSR")    if     his     criminal    history

category was IV or higher (it was later calculated to be VI).                      As

part of the agreement, the parties stipulated to the Guidelines

calculations. The Guidelines provided that the base offense level,

pursuant to U.S.S.G. § 2B1.1(a)(2), was seven.                       A twelve-point

increase was added pursuant to U.S.S.G. § 2B1.1(b)(H) because the

stipulated amount of loss attributed to Arroyo-Maldonado was at

least $200,000, but less than $400,000; a two-point increase was

added under U.S.S.G. § 2B1.1(b)(2)(A) because Arroyo-Maldonado's

offense involved ten or more victims; and an additional two-point

increase was added because Arroyo-Maldonado was identified as an

organizer, leader, manager, or supervisor of a criminal activity,

pursuant    to    U.S.S.G.   §   3B1.1(c).         Finally,        Arroyo-Maldonado

received a three-point reduction for acceptance of responsibility

pursuant to U.S.S.G. § 3E1.1(a) and (b), which resulted in a total

offense level of twenty.

             On August 20, 2013, the court sentenced Arroyo-Maldonado

to one hundred and twenty months imprisonment, and granted eighteen

months credit for time served.            The applicable GSR was seventy to

eighty-seven months of imprisonment, a fine of $7,500 to $1

million, and a supervised release term of not more than five years.


                                         -3-
At the sentencing hearing, a probation officer revealed that

Arroyo-Maldonado's criminal history had twenty-five points, which

is a criminal history category VI, and the court noted, "[t]his is

the first 25 point [white collar] case that I have [had] in my

career." The court also explained that "[t]he judge reacts to what

is on the record.      What I have on the record is a gentleman that

has the worst white collar crime history that I have seen in my

career.   The worst.    I have never had anybody who has 25 points on

white collar."   This timely appeal followed.1

                             II.   Analysis

           Arroyo-Maldonado alleges that the district court erred in

imposing a sentence of one hundred and twenty months, which is

above the applicable GSR.

           This court's review of sentencing decisions involves

evaluation of both procedural and substantive reasonableness.

Arroyo-Maldonado contends that the district court committed a

significant procedural error by failing to consider the relevant



1
   We note that even though Arroyo-Maldonado's plea agreement had
a waiver-of-appeal clause, his appeal is properly before us. Here,
Arroyo-Maldonado waived his right to appeal to the extent he was
subsequently sentenced in accordance with the terms and conditions
set forth in the plea agreement. The sentence ultimately imposed
was not in accordance with these terms and conditions, which
recommended a sentence toward the lower end of the applicable GSR
of seventy to eighty-seven months.       Thus, as the Government
correctly concedes, the waiver-of-appeal does not bar the instant
appeal. See United States v. Murphy-Cordero, 715 F.3d 398, 400
(1st Cir. 2013) (holding that a waiver-of-appeal clause only
precludes appeals falling within its scope).

                                   -4-
sentencing factors and by giving undue weight to the nature and

circumstances of the offense.       Arroyo-Maldonado also argues that

the district court erred procedurally by mistakenly believing that

the statute he pleaded guilty to contained a mandatory minimum

sentence of one hundred and twenty months.          In support of this

contention, he highlights a portion of the sentencing hearing where

the court stated, "[t]he court has also taken into consideration

the plea agreement between the parties; however, it finds that a

statutory sentence at the lower end is more adequate considering

his criminal history and considering his nefarious white crime

incidents." Arroyo-Maldonado avers that 18 U.S.C. §§ 1344 and 1349

contain no mandatory minimum sentence.

           As to the alleged substantive errors, Arroyo-Maldonado

suggests   that   the   district   court's   sentence   was   unreasonable

because it gave greater weight to his criminal history and the

punitive component of a sentence than to "other factors such as

rehabilitation measures." Furthermore, he argues that the district

court sentenced him outside of the properly calculated GSR of

seventy to eighty-seven months solely based on punitive factors,

which makes the sentence substantively unreasonable.          He therefore

contends that the court failed to abide by its obligation under the

Supreme Court's decision in Kimbrough v. United States, 552 U.S.

85, 101 (2007), to impose a sentence that is "sufficient, but not




                                    -5-
greater than necessary." Accordingly, Arroyo-Maldonado argues that

his sentencing decision must be vacated and remanded.

           We   review   sentencing   decisions   under   the   advisory

Guidelines for "reasonableness, regardless of whether they fall

outside or inside the applicable GSR."     United States v. Turbides-

Leonardo, 468 F.3d 34, 40 (1st Cir. 2006).        Typically, we review

sentences imposed under the advisory Guidelines for abuse of

discretion.     See   Gall v. United States, 552 U.S. 38, 51 (2007);

United States v. Santiago-Rivera, 744 F.3d 229, 232 (1st Cir. 2014)

(citing United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008)).

However, "[w]hen a defendant fails to preserve an objection below,

the plain error standard supplants the customary standard of

review."   United States v. Fernández-Hernández, 652 F.3d 56, 71

(1st Cir. 2011) (quoting United States v. Dávila-González, 595 F.3d

42, 47 (1st Cir. 2010)).      "[R]eview for plain error entails 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. Medina-

Villegas, 700 F.3d 580, 583 (1st Cir. 2012) (quoting United States

v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).        For this court to

reverse a district court's sentence under this standard, there must

be a "reasonable probability that, but for the error, the district

court would have imposed a different, more favorable sentence."


                                  -6-
Turbides-Leonardo,   468    F.3d   at    39   (citing   United    States   v.

Antonakopoulos, 399 F.3d 68, 78 (1st Cir. 2005)).

           In   reviewing   sentences     imposed   under   the     advisory

Guidelines, "[t]he review process is bifurcated: 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).                  Examples of

procedural errors identified by the Supreme Court include "failing

to calculate (or improperly calculating) the Guidelines range,

treating the Guidelines as mandatory, failing to consider the

§ 3553(a) factors, selecting a sentence based on clearly erroneous

facts, or failing to adequately explain the chosen sentence --

including an explanation for any deviation from the Guidelines

range."   Gall, 552 U.S. at 51.    If procedurally sound, we consider

the totality of the circumstances, including the extent of any

variance from the Guidelines, to determine whether the sentence is

substantively reasonable.     See id.

           The district court exercises broad discretion in weighing

the different sentencing factors and we remain deferential to its

sentencing determinations.     See United States v. Colón-Rodríguez,

696 F.3d 102, 108 (1st Cir. 2012); see also United States v.

Vargas-Dávila, 649 F.3d 129, 131 (1st Cir. 2011) ("The length of an

increased sentence is necessarily a judgment call and, within wide

limits, deference is due to the trier's on-the-spot perceptions.").


                                   -7-
"[T]here is not a single reasonable sentence but, rather, a range

of reasonable sentences."         Martin, 520 F.3d at 92.            Accordingly,

"[w]e generally respect the district court's sentence as long as

the court has provided a plausible explanation, and the overall

result is defensible."      United States v. Innarelli, 524 F.3d 286,

292 (1st Cir. 2008).

             18 U.S.C. § 3553 requires a sentencing court to consider

a variety of potential sentences and explain in open court the

reasons for a particular sentence it imposes. See Medina-Villegas,

700 F.3d at 583.      When a sentencing court deviates substantially

from   the    Guidelines,    it     must       provide    a   more   significant

justification than for a slight deviation.               Martin, 520 F.3d at 91

(citing Gall, 552 U.S. at 50).             However, a sentence outside the

applicable    GSR   does   not    come    to   the   reviewing   court    with   a

presumption of unreasonableness.           Gall, 552 U.S. at 51.         Although

required to explain its sentence, "a sentencing court is not

required to address frontally every argument advanced by the

parties, nor need it dissect every factor made relevant by 18

U.S.C. § 3553 'one by one, in some sort of rote incantation.'"

Turbides-Leonardo, 468 F.3d at 40-41 (quoting United States v.

Dixon, 449 F.3d 194, 205 (1st Cir. 2006)).                Although we review a

sentencing court's explanation in open court, "a court's reasoning

can [also] often be inferred by comparing what was argued by the

parties or contained in the pre-sentence report with what the judge


                                         -8-
did." United States v. Jiménez-Beltre, 440 F.3d 514, 519 (1st Cir.

2006).   Ultimately, "[t]he court's reasons for deviation should

typically be rooted either in the nature and circumstances of the

offense or the characteristics of the offender; must add up to a

plausible rationale; and must justify a variance of the magnitude

in question."     Martin, 520 F.3d at 91.

              Arroyo-Maldonado's sentence of one hundred and twenty

months   of    imprisonment      was    neither    procedurally    flawed   nor

substantively unreasonable. Because Arroyo-Maldonado did not raise

any objections to his sentence below, we review for plain error.

Fernández-Hernández, 652 F.3d at 71 (citing Dávila-González, 595

F.3d at 47).       The record reveals no procedural errors in the

imposition of Arroyo-Maldonado's sentence. First, at the sentencing

hearing, the district court correctly calculated the GSR, and

acknowledged that the Guidelines were only advisory.              The district

court also clearly stated on the record that it considered all the

sentencing     factors   set    forth    in   18   U.S.C.   §   3553(a).    See

Santiago-Rivera, 744 F.3d at 233 (noting that a judge's statement

that he has considered all of the § 3553(a) factors is entitled to

significant weight).           Moreover, the district court explicitly

referenced specific § 3553 factors.                For example, the district

court explained that "in imposing a sentence [it] considered the

nature and circumstances of the offense and the defendant's history

and characteristics," see 18 U.S.C. § 3553(a)(1), and that it was


                                        -9-
"going to order a remedial measure, under Title 18, U.S.C.,

3553(a)(2)(D),        that   he     receive     mental   and    psychological

evaluation."     Lastly, the district court stated that the chosen

sentence would be imposed "in order to afford ...              deterrence and

to provide just punishment of the offense." See id. § 3553(a)(2)(A)

& (B).     Accordingly, a review of the sentencing hearing reveals

that the district court sufficiently considered the § 3553(a)

factors.    See Dixon, 449 F.3d at 205.

            Furthermore, the district court adequately explained its

deviation from the GSR.           At the sentencing hearing, the district

court explained that "[t]he judge reacts to what is on the record.

What I have on the record is a gentleman that has the worst white

collar crime history that I have seen in my career.             The worst.   I

have never had anybody who has 25 points on white collar."                   A

review     of   the    PSR   and    the   sentencing     hearing   transcript

demonstrates          the    district         court's    consideration       of

Arroyo-Maldonado's criminal history as a significant reason for

deviating above the GSR.            See Jiménez-Beltre, 440 F.3d at 519

(noting that it is permissible to infer a court's reasoning by

comparing the parties' arguments and the PSR to what the judge

actually did).         Ultimately, the district court's reasoning for

deviating above the GSR is clearly based on Arroyo-Maldonado's

criminal history. See Martin, 520 F.3d at 91 ("The court's reasons

for deviation should typically be rooted either in the nature and


                                      -10-
circumstances    of   the    offense      or    the    characteristics         of   the

offender.").    Accordingly, the district court's explanation of the

sentence   it   imposed     and   its    reasons      for     deviating   from      the

applicable GSR was sufficient and did not amount to a procedural

error.

           Arroyo-Maldonado's           claim    that        the    district    court

mistakenly believed that the statute prescribed a mandatory minimum

is not supported by the record. As the Government correctly notes,

the district court never made any reference to a mandatory minimum

throughout the sentencing hearing, while referencing the statutory

maximum sentence of thirty years several times throughout the

proceeding.     During the hearing, the court stated that "it finds

that a statutory sentence at the lower end is more adequate

considering his criminal history and considering his nefarious

white crime incidents." This statement alone is insufficient to

indicate that the district court felt constrained by a mandatory

minimum sentence.     Furthermore, the record as a whole contains no

indication that the district court mistakenly believed that it was

bound by a mandatory minimum sentence.                Accordingly, the district

court's sentencing of Arroyo-Maldonado did not suffer from any

procedural flaws. Therefore, we next consider whether the sentence

is substantively reasonable.        See Gall, 552 U.S. at 51.

           In   considering       the    totality       of    the    circumstances,

including the extent of the district court's variance from the


                                        -11-
Guidelines, the district court's one hundred and twenty month

sentence     is   substantively    reasonable    and   therefore   does   not

constitute plain error.           Arroyo-Maldonado's argument that the

district court erred substantively by giving greater weight to his

criminal history and the punitive component of a sentence than to

rehabilitative factors is not supported by this court's precedent.

See Clogston, 662 F.3d at 593 ("A sentencing court is under a

mandate to consider a myriad of relevant factors, but the weighting

of   those    factors    is   largely   within     the   court's   informed

discretion."); see also Martin, 520 F.3d at 92 ("[R]eversal will

result if - and only if - the sentencing court's determination

falls outside the expansive boundaries of that universe.").               The

district court was well within its discretion in giving greater

weight to Arroyo-Maldonado's criminal history than other factors.

Therefore, the district court's weighing of the relevant sentencing

factors in a manner that Arroyo-Maldonado does not agree with does

not amount to plain error.

             Arroyo-Maldonado's suggestion that the district court

sentenced him above the applicable GSR based solely on punitive

reasons is meritless. Although at the sentencing hearing the court

noted, "[p]unitive wise, I raised it," this isolated statement does

not indicate that the sole basis for the district court's sentence

was for punitive purposes.           Indeed, as discussed above, the

district court's discussion of the relevant § 3553(a) factors


                                     -12-
demonstrates   that    it   considered       additional   factors   such   as

Arroyo-Maldonado's      need   for     psychological      treatment,2      the

deterrence aspect of punishment, and Arroyo-Maldonado's criminal

history.   Put simply, Arroyo-Maldonado's argument amounts to a

disagreement with the district court's weighing of the different

sentencing factors, and does not establish plain error in the

district court's sentence.      See Clogston, 662 F.3d at 593 ("The

appellant in effect seeks to substitute his judgment for that of

the   sentencing      court.      We        cannot   countenance    such    a

substitution.").


2
   Although not raised by the parties below, we note that any
attempt to challenge the sentence on the basis of Tapia v. United
States, 131 S. Ct. 2382 (2011), would have been futile. In Tapia,
the Supreme Court held that a sentencing court may not impose or
lengthen a prison term in order to promote an offender's
rehabilitation. Id. at 2391 (finding a district court's sentence
improper where the length of the sentence was imposed to ensure
that the defendant could complete a 500-hour drug treatment
program). The court also noted, however, that "a court commits no
error by discussing the opportunities for rehabilitation within
prison or the benefits of specific treatment or training programs."
Id. at 2392. Expanding on Tapia, this court held that "no Tapia
error occurs unless rehabilitative concerns are being relied upon
either in deciding whether to incarcerate or in deciding the length
of the incarcerative sentence to be imposed.        Thus, the mere
mention of rehabilitative needs, without any indication that those
needs influenced the length of the sentence imposed, is not Tapia
error. United States v. Del Valle-Rodríguez, 761 F.3d 171, 175
(1st Cir. 2014). Accordingly, even if it had been raised below,
the record reveals that Arroyo-Maldonado's sentence did not suffer
from any Tapia error.       Though the district court mentioned
rehabilitative opportunities in its imposition of Arroyo-
Maldonado's one hundred and twenty month sentence, nothing on the
record indicates that the length of his sentence was based on the
need for rehabilitative measures. Rather, the record makes clear
that the district court's sentence was based on Arroyo-Maldonado's
extensive criminal history.

                                     -13-
           The   district   court's   one   hundred   and   twenty   month

sentence   is    neither    procedurally    flawed    nor   substantively

unreasonable.    Here, like in Clogston, "[t]his was a defensible

result, and the court stated a plausible rationale for reaching it.

No more was required."      Id.

                            III.   Conclusion

           In determining Arroyo-Maldonado's sentence, the district

court considered all sentencing factors, adequately explained its

sentence and deviation from the GSR, and imposed a reasonable

sentence in the totality of the circumstances.          Accordingly, the

district court's imposition of a one hundred and twenty month

sentence   was   neither    procedurally    flawed    nor   substantively

unreasonable. Therefore, the district court's sentence is affirmed.

           AFFIRMED.




                                   -14-
