          United States Court of Appeals
                     For the First Circuit


No. 14-2209

                   UNITED STATES OF AMERICA,

                           Appellee,

                               v.

                 EDGARDO L. BERMÚDEZ-MELÉNDEZ,

                     Defendant, Appellant.


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

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


                             Before

                  Thompson, Selya and Barron,
                        Circuit Judges.


     José L. Nieto-Mingo and Nieto Law Offices on brief for
appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Tiffany V. Monrose, Assistant United States
Attorney, on brief for appellee.




                         June 28, 2016
           SELYA,   Circuit    Judge.          In   this    sentencing     appeal,

defendant-appellant Edgardo L. Bermúdez-Meléndez mounts a multi-

faceted challenge to his upwardly variant sentence for a firearms

offense.   After careful consideration, we affirm.

                                       I.

           Inasmuch as this appeal trails in the wake of a guilty

plea, we draw the facts from the non-binding plea agreement (the

Agreement), the change-of-plea colloquy, the undisputed portions

of the presentence investigation report (PSI Report), and the

transcript of the disposition hearing.                 See United States v.

Almonte-Nuñez, 771 F.3d 84, 86 (1st Cir. 2014).                   On November 27,

2013, Puerto Rico police officers executed a search warrant at the

appellant's   residence   in       Guaynabo.        Upon   their    arrival,    the

appellant fled into a wooded area near the house, jumped off a

small cliff, and broke both legs.           A subsequent inspection of the

fallen man and his possessions revealed quantities of powdered

cocaine, crack cocaine, and marijuana, an AK-47 assault rifle, and

a collection of magazines and ammunition.                   More magazines and

ammunition,   along   with     a    Glock    pistol,       were    found   in   the

appellant's living room.

           In due season, a federal grand jury returned a four-

count indictment.     Counts 1 through 3 charged the appellant with

a litany of drug-trafficking crimes, while count 4 — the only count

in issue here — charged him with possession of a firearm in


                                     - 2 -
furtherance      of     a    drug-trafficking       crime.           See    18   U.S.C.

§ 924(c)(1)(A).         After initially maintaining his innocence, the

appellant relented and entered into the Agreement, in which he

agreed to plead guilty to count 4 in exchange for the dismissal of

the other charges.          Among other things, the Agreement memorialized

a joint sentencing recommendation of 72 months' immurement.

            At    the       change-of-plea      hearing,      the    district     court

accepted the appellant's guilty plea to count 4 and ordered the

preparation of the PSI Report.                  In the completed Report, the

probation office noted that the statute of conviction required a

minimum 60-month term of imprisonment.              See 18 U.S.C. § 924(c)(1);

USSG §2K2.4(b). It further noted that it had identified no factors

demanding   an    upward       variance    (but    it   did    not    foreclose    the

possibility of such a variance).

            At sentencing, the parties urged the district court to

impose   the     agreed      72-month     sentence.        The      court    demurred,

concluding that a stiffer sentence was in order.                       It then meted

out a 90-month incarcerative term.1               This timely appeal ensued.

                                          II.

            We pause at the threshold to brush aside the waiver-of-

appeal clause contained in the Agreement.               That clause conditioned

the waiver on the imposition of a sentence in "accordance with the


    1 The court, in pursuance of the Agreement, also dismissed the
three remaining counts.


                                        - 3 -
terms and conditions set forth in the Sentence Recommendation

provisions of [the Agreement]."                 The sentence levied by the

district   court   was    not     within     the    compass     of       the   Sentence

Recommendation provisions.             It follows that the waiver-of-appeal

clause is a dead letter and does not pretermit this appeal.                          See,

e.g., United States v. Vargas-García, 794 F.3d 162, 165 n.2 (1st

Cir. 2015).

                                         III.

             This brings us to the appellant's asseverational array.

It is familiar lore that we review challenges to the reasonableness

of a sentence by means of a two-step pavane.                   See Gall v. United

States, 552 U.S. 38, 51 (2007); United States v. Martin, 520 F.3d

87, 92 (1st Cir. 2008).           We begin by examining assignments of

procedural     error,    which     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.    Once this hurdle is cleared, we then appraise the

substantive reasonableness of the sentence, "tak[ing] into account

the totality of the circumstances, including the extent of any

variance from the Guidelines range."               Id.




                                        - 4 -
           In determining substantive reasonableness, substantial

respect is due to the sentencing court's discretion. See id. This

deferential approach recognizes that though "[a] sentencing court

is under a mandate to consider a myriad of relevant factors

. . . the weighting of those factors is largely within the court's

informed discretion."         United States v. Clogston, 662 F.3d 588,

593 (1st Cir. 2011).          Even with respect to an upwardly variant

sentence, an appellate court "must give due deference to the

district court's decision that the [18 U.S.C.] § 3553(a) factors,

on a whole, justify the extent of the variance."             Gall, 552 U.S.

at 51.

           In carrying out these tasks, our standard of review is

for abuse of discretion.        See id.; United States v. Narváez-Soto,

773 F.3d 282, 285 (1st Cir. 2014).           We caution, however, that this

standard   of   review   is    not   monolithic:    within   it,   we   review

conclusions of law de novo and findings of fact for clear error.

See Narváez-Soto, 773 F.3d at 285; United States v. Walker, 665

F.3d 212, 232 (1st Cir. 2011).

                                      A.

           Against this backdrop, we turn first to the appellant's

claims of procedural error.          To this end, the appellant argues

that the district court failed to give an adequate explanation for

the sentence imposed and, in the bargain, failed to make an

individualized assessment of his history and characteristics.               He


                                     - 5 -
adds that the district court mischaracterized his inventory of

weapons and ammunition.         We deal with these claims of procedural

error one by one.        Because none of them was raised below, "the

plain error standard supplants the customary standard of review."

United States v. Dávila-González, 595 F.3d 42, 47 (1st Cir. 2010).

              Review for plain error is not appellant-friendly.               That

review "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. Duarte, 246 F.3d 56, 60 (1st Cir.

2001).

                                           1.

              The    appellant's          principal     procedural        challenge

implicates 18 U.S.C. § 3553(c), which obliges a sentencing court

to "state in open court the reasons for its imposition of the

particular sentence."         This statutory imperative has consistently

been "read in a practical, common-sense way," Dávila-González, 595

F.3d at 48, mindful that the adequacy of a sentencing court's

explanation must be judged case by case.

              Even so, a sentencing court need not "be precise to the

point of pedantry."      United States v. Turbides-Leonardo, 468 F.3d

34, 40 (1st Cir. 2006).        To satisfy its burden of explanation, the

sentencing court need do no more than identify the main factors


                                      - 6 -
behind its decision.        See United States v. Sepúlveda-Hernández,

817 F.3d 30, 33 (1st Cir. 2016).

            In the case at hand, there is no applicable guideline

sentencing range; the statutory mandatory minimum sentence (here,

60 months) is the guideline sentence. See USSG §2K2.4(b), comment.

(n.2); see also Vargas-García, 794 F.3d at 166; United States v.

Rivera-González, 776 F.3d 45, 49 (1st Cir. 2015).                 In such a

situation — that is, when application of the sentencing guidelines

yields a singular guideline sentence rather than a guideline

sentencing range — a sentence in excess of the guideline sentence

should be treated as an upward variance.             See United States v.

Oquendo-Garcia, 783 F.3d 54, 56 (1st Cir. 2015).                   Thus, the

sentence imposed below was the functional equivalent of an upward

variance of 30 months.       This is potentially important because an

upwardly variant sentence usually requires a fuller explanation

than a guideline sentence. See Gall, 552 U.S. at 50; United States

v. Montero-Montero, 817 F.3d 35, 37 (1st Cir. 2016).

            At the disposition hearing, the district court commented

upon the appellant's frequent brushes with the law, the seriousness

of   the   offense   of   conviction,   and   the   need   to   promote   both

deterrence and respect for the law. The court then noted the joint

sentencing recommendation2 and stated: "I don't think that that is


     2The court recalled the joint sentencing recommendation as 70
months' imprisonment, not 72 months' imprisonment. Obviously, the


                                   - 7 -
enough considering the nature of the firearms, the amount of

ammunition, the kind of magazines, the whole bit.                    It's an arsenal

. . . ."

              This explanation is lean, but we think it sufficient to

withstand plain error review.                 After all, the appellant had

assembled an impressive array of munitions: an AK-47 assault rifle,

at    least   11    high-capacity       magazines,       roughly     270   rounds     of

ammunition (in various calibers), and a Glock pistol.                          To make

matters worse, he possessed these munitions in close proximity to

a trove of illegal drugs.             Where — as here — "the record permits

a    reviewing     court     to   identify    both   a    discrete    aspect    of    an

offender's conduct and a connection between that behavior and the

aims of sentencing, the sentence is sufficiently explained to pass

muster    under     section       3553(c)."      United     States    v.   Fernández-

Cabrera, 625 F.3d 48, 54 (1st Cir. 2010).

              This conclusion is strengthened by the fact that the

appellant himself acknowledged the appropriateness of an upward

variance: he agreed to the imposition of a 72-month sentence (an

upward variance of 12 months over the guideline sentence).                           The

sentencing         court's        determination      that     the     gravity        and

circumstances of the offense of conviction warranted an additional

18 months of imprisonment was not plain error.



court misspoke. In context, though, this slip of the tongue is
inconsequential.


                                         - 8 -
              Nor   is   there     any     basis    here    for   the    appellant's

suggestion that the district court was obliged to explain why it

rejected      the   parties'       joint    recommendation        for    a    72-month

sentence.      See United States v. Ruiz-Huertas, 792 F.3d 223, 228

(1st Cir.), cert. denied, 136 S. Ct. 258 (2015).                          Although a

sentencing court typically has a duty to explain why it selected

a particular sentence, it has "no corollary duty to explain why it

eschewed other suggested sentences."                    United States v. Vega-

Salgado, 769 F.3d 100, 104 (1st Cir. 2014).

                                           2.

              The appellant's second claim of procedural error posits

that the district court did not individualize his sentence and,

thus, overlooked some sentencing factors.                  But at the disposition

hearing,      the   court    clearly       indicated    its    awareness       of   the

appellant's personal history and characteristics.                  For example, it

engaged explicitly with the appellant's drug consumption, the

absence of any mental health issues, and the like.                       There is no

reason   to    believe      that    the    court    neglected     to     factor     this

information into the sentencing calculus.                  For aught that appears,

the appellant's real complaint is not that the court ignored his

history and personal characteristics but that it weighed those

factors less favorably than he would have liked.                  Assigning weight

to   pertinent      sentencing      factors       is,   within    wide       limits,   a

prototypical exercise of a sentencing court's discretion, see


                                          - 9 -
Rivera-González, 776 F.3d at 50, and those wide limits were not

exceeded here.

                                        3.

             The appellant's procedural challenge has a final facet:

he attacks the district court's use of the term "arsenal" in

describing    the    assortment    of   firearms    and   ammunition      at   his

residence.3    This attack is easily repulsed.

             While   the   court    may      have   engaged   in     hyperbole,

sentencing    courts    are   entitled       to   broad   latitude   in    their

linguistic     choices.        Consequently,         gratuitous      rhetorical

flourishes, without more, will not render a sentence infirm.                   See

United States v. Flores-Machicote, 706 F.3d 16, 22-24 (1st Cir.

2013).   So it is here: the court's meaning was clear, and its use

of the term "arsenal" in no way compromised the legitimacy of the

sentence imposed.

                                        B.

             Having cleared the procedural hurdles, we come next to

the appellant's assertion that the length of his sentence renders

it substantively unreasonable.            This assertion rests largely on




    3  For example (as quoted above), the court said when it
pronounced sentence: " . . . considering the nature of the
firearms, the amount of ammunition, the kind of magazines, the
whole bit. It's an arsenal . . . ." To cite another example, the
court remarked, at an earlier point during the disposition hearing,
"when you have this [sic] kind of firearms, this is what you call
an arsenal."


                                    - 10 -
his plaint that the district court relied too heavily on acts of

violence in the general community in formulating an overly harsh

sentence.

            Even though the appellant did not advance this claim of

error below, the standard of review is in doubt. See Ruiz-Huertas,

792 F.3d at 228 (discussing conflicting case law with respect to

application of plain error standard to claims that a sentence is

substantively unreasonable). We need not answer that open question

today: assuming, favorably to the appellant, that review is for

abuse of discretion, the claim of error founders.

            The "touchstone of abuse of discretion review in federal

sentencing is reasonableness."          United States v. Vargas-Dávila,

649 F.3d 129, 130 (1st Cir. 2011).          Reasonableness is itself an

inherently fluid concept.        See Martin, 520 F.3d at 92.          In any

given case, "[t]here is no one reasonable sentence . . . but,

rather, a universe of reasonable sentencing outcomes."          Clogston,

662 F.3d at 592.

            A   challenge   to   the   substantive   reasonableness    of   a

sentence pivots on whether the sentencing court has offered a

plausible rationale for the sentence and whether the sentence

itself represents a defensible outcome.              See United States v.

Madsen, 809 F.3d 712, 720 (1st Cir. 2016); Martin, 520 F.3d at 96.

In this instance, the sentencing court's rationale was plausible.

As we already have explained, the court's reasoning stressed the


                                   - 11 -
nature of the firearms, the quantity and variety of ammunition,

and the diverse assortment of magazines found in the appellant's

possession.       Additionally, the court noted the seriousness of the

offense, the need to promote both deterrence and respect for the

law, and the appellant's past difficulties with the authorities.

So    viewed,     the   upwardly    variant      sentence    was     grounded    in   a

plausible sentencing rationale and "serve[d] the objectives of

sentencing."       Kimbrough v. United States, 552 U.S. 85, 91 (2007).

             To    be   sure,    the    district   court     did     embellish   this

rationale.      For example, it stated during the disposition hearing,

"How many more, how many more firearms are we going to allow on

the streets of this island?               How many more acts of violence?"

Spotlighting       such    comments,     the    appellant     suggests    that    the

court's sentencing rationale was tainted by its concerns about

community-based considerations.              We do not agree.

             We have squarely held that a district court may consider

community-based         and     geographic      factors     in     formulating    its

sentence.       See Flores-Machicote, 706 F.3d at 22-23.                  The court

here did not stray beyond this limited grant of authority: though

it decried the pervasive problems associated with violent crimes

in Puerto Rico, it did so only glancingly — and then, only in

connection with the need for deterrence.                   Throughout, the court

remained attentive to the particulars of the appellant's case and

(as    noted      above)      engaged    with    his      personal     history    and


                                        - 12 -
characteristics.     So, too, the court took into account the stark

fact that the appellant used his dwelling as a storage facility

for guns, magazines, and ammunition.         Under these circumstances,

we discern no abuse of discretion in the sentencing court's linkage

between     community-based     considerations    and     the   need   for

deterrence.

            Nor does the length of the appellant's sentence (90

months) seem indefensible.        The offense of conviction is quite

serious, the circumstances of its commission are particularly

troubling, and the sentence imposed represents only a modest

increase over the sentence (72 months) that the appellant himself

thought condign. Seen in this light, the sentence fits comfortably

within    the   universe   of   reasonable   sentencing   outcomes.    We

therefore reject the claim of substantive unreasonableness.

                                    IV.

            We need go no further. For the reasons elucidated above,

the appellant's sentence is



Affirmed.




                                   - 13 -
