          United States Court of Appeals
                     For the First Circuit


No. 16-1205

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                  HECTOR LUIS TORRES-FIGUEROA,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. José Antonio Fusté, U.S. District Judge]


                             Before

                    Barron, Selya, and Stahl,
                         Circuit Judges.


     Jonathan G. Mermin and Preti, Flaherty, Beliveau & Pachios,
LLP on brief for appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Julia M. Meconiates, Assistant United
States Attorney, on brief for appellee.



                          June 23, 2017
               BARRON,    Circuit Judge.          Hector Luis Torres-Figueroa

("Torres") challenges his sentence of 60 months' imprisonment.                  We

affirm.

                                          I.

               On September 10, 2015, Torres was indicted on four counts

in the United States District Court for the District of Puerto

Rico: first, possession with intent to distribute marijuana, in

violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C); second,

possession with intent to distribute cocaine, in violation of 21

U.S.C. § 841(a)(1) and 841(b)(1)(C); third, possession of a firearm

in furtherance of a drug trafficking crime, in violation of 18

U.S.C. § 924(c)(1)(A)(i); and fourth, possession of a machine gun

in furtherance of a drug trafficking crime, in violation of 18

U.S.C. § 924(c)(1)(B)(ii).               On September 24, 2015, Torres was

convicted by a jury of the first and second counts and acquitted

of the third and fourth counts.

               The amended pre-sentence investigation report ("PSR")

that    the    Probation     Office     prepared      calculated    Torres's   base

offense level by first grouping Count 1 and Count 2 into a single

Count   Group,        pursuant   to    United    States   Sentencing   Guidelines

§ 3D1.1(a).           The PSR then determined that the applicable base

offense       level    for   that     Count   Group    was   12,   under   U.S.S.G.

§ 2D1.1(c)(14), in consequence of the quantity of drugs involved.

And, the PSR determined that Torres's criminal history category


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was II.       The PSR then identified the sentencing range under the

guidelines for Torres as 12-18 months' imprisonment.

              Before sentencing, the government submitted a sentencing

memorandum recommending that a two-level enhancement be imposed

under    U.S.S.G.    §    2D1.1(b),    which   applies   when      the   defendant

possessed a firearm during the drug trafficking offense.                      That

enhancement, combined with Torres's criminal history category,

would yield a sentencing range under the sentencing guidelines of

18-24 months' imprisonment.           The government, however, recommended

that    the    District    Court   impose      a   sentence   of    120    months'

imprisonment.       The government based that recommendation on, among

other things, Torres's extensive drug-related criminal history and

the fact that the gun that was allegedly in Torres's possession

while he was engaged in drug trafficking was a fully automatic

rifle with an obliterated serial number.

              At sentencing, the District Court applied a base offense

level under the sentencfng guidelines of 12.              The District Court

did so because the District Court determined that Torres's drug

trafficking involved less than 50 grams of cocaine.                       U.S.S.G.

§ 2D1.1(a)(5). The District Court noted that Torres did not object

to the imposition of the two-level firearms enhancement, but that

the District Court was not going to impose the enhancement because

"I should not give him the two points and double count if you

will."    Instead, the District Court made a guidelines calculation


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that, in accordance with the PSR, yielded a recommended sentencing

range of 12-18 months' imprisonment, and then imposed a variant

sentence of 60 months' imprisonment.        The District Court did so on

the basis of the testimony of law enforcement officers at trial

indicating that Torres "[had] been involved in drugs for a long,

long time," and that he possessed, while committing the offenses

for which he was convicted, a fully automatic rifle with the

obliterated serial number, along with six magazines and over one

hundred   rounds   of   ammunition,    notwithstanding    that    he     was

acquitted on the firearms counts.       The District Court explained

that it based 42 months of the 60 months of imprisonment on

Torres's firearms-related conduct.

                                 II.

          Torres   contends   that    the    District   Court    erred    by

imposing a 42-month variance over and above the top of the 12-18

months sentencing range set forth in the sentencing guidelines.

Torres argues that, under the guidelines, the firearms-related

conduct should have resulted only in the application of the two-

level enhancement to his base offense level, and thus should have

resulted in a sentencing range under the sentencing guidelines of

only 18-24 months' imprisonment.      And Torres further contends that

the District Court made clear that it could not impose both the

enhancement and the variant sentence without "double counting."

Thus, Torres argues that, "if the [District Court] had given the


                                - 4 -
two-level [enhancement] -- as it was required to do -- it would

not have imposed a variance on top of the resulting 18-to-24 month

range."

             Torres concedes that he did not make this objection

below.      And, in fact, he specifically advised the District Court

that   it    was    not   required     to   apply    the     two-level   firearms

enhancement,       even   if   the    evidence   sufficed      to   support   the

enhancement's application.           For that reason, the government argues

that Torres has waived his right to contend now, in the course of

challenging the variant sentence, that the District Court was

required to apply the enhancement.

             Without      deciding     whether      Torres    has   waived    this

argument, we conclude that Torres's contention fails under the

plain error standard of review, which Torres asks us to apply.

See United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir.

2015), cert. denied, 136 S. Ct. 258 (2015) ("[W]here a party fails

to preserve claims of error in the court below . . . review is for

plain error.").        "To prevail under this daunting standard, the

defendant must establish (1) that an error occurred (2) which was

clear or obvious and which not only (3) affected [his] substantial

rights, but also (4) seriously impaired the fairness, integrity,

or public reputation of judicial proceedings."                Id. (alteration in

original) (citation omitted).           Torres cannot meet that standard.




                                       - 5 -
            A district court may vary a sentence on the basis of

conduct that is in part accounted for by an enhancement in the

sentencing guidelines so long as the district court "articulate[s]

specifically    the   reasons   that     this   particular   defendant's

situation is different from the ordinary situation covered by the

guidelines calculation."   United States v. Zapete-Garcia, 447 F.3d

57, 60 (1st Cir. 2006).     And here, the District Court explained

that Torres's situation was different in important ways from the

ordinary situation covered by the enhancement, because of Torres's

criminal history, the fully automatic nature of the weapon, the

weapon's obliterated serial number, and the large quantity of

ammunition.    Moreover, Torres cites no authority to support the

proposition that a district court must impose an enhancement in

order to impose a variant sentence on the basis of conduct that

would not only justify the enhancement, but would also justify a

sentence greater than the guidelines range under the enhancement.

Given that the record indicates that the District Court declined

to apply the enhancement here in order to avoid double counting

that portion of the conduct that was not different from the

ordinary situation covered by the enhancement, we see no clear or

obvious error in the District Court's deciding not to apply the

enhancement and to impose a variant sentence of the length it

selected.




                                 - 6 -
                    III.

The sentence is affirmed.




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