                Not for Publication in West's Federal Reporter

          United States Court of Appeals
                       For the First Circuit


No. 16-2034

                             UNITED STATES,

                                Appellee,

                                     v.

                             HARRY PARSONS,

                        Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. Denise J. Casper, U.S. District Judge]


                                  Before

                        Howard, Chief Judge,
              Torruella and Thompson, Circuit Judges.


     Robert C. Andrews on brief for appellant.
     William D. Weinreb, Acting United States Attorney, and Alexia
R. De Vincentis, Assistant United States Attorney, on brief for
appellee.



                           October 16, 2017
              Per Curiam.      Appellant-defendant Harry Parsons appeals

from    the   54-month      sentence        imposed      upon     resentencing,        which

represented     an    upward    variance        from      the     non-career      offender

guideline     sentencing       range    (GSR)       of    37-46     months.       Parsons

challenges      the    sentence        as     procedurally         and     substantively

unreasonable.         We    grant   the      government's         motion    for   summary

disposition.

              At Parsons' original sentencing, the court determined

(over   Parsons'      objection)       that    the       career    offender    guideline

applied to him.        However, the court exercised its discretion to

deviate from that GSR and to sentence him as though he were not a

career offender.           See United States v. Martin, 520 F.3d 87, 96

(1st Cir. 2008)(stating that Kimbrough v. United States, 552 U.S.

85 (2007) "opened the door for a sentencing court to deviate from

the guidelines in an individual case even though that deviation

seemingly      contravenes      a   broad       policy       pronouncement        of    the

Sentencing Commission."). Neither party had requested a sentence

within the career offender GSR and the court repeatedly stated

that the career offender designation was not driving the sentence.

After addressing in detail the 18 U.S.C. § 3553(a) factors as they

applied to Parsons' case, the court imposed a 66-month sentence,

which was somewhat above the non-career offender GSR of 37-46



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months, but substantially below the career offender GSR of 262-

327 months.

           Parsons appealed his 66-month sentence to this court

(Appeal No. 15-1539) and while that appeal was pending, the United

States Supreme Court issued its decision in Johnson v. United

States, 135 S.Ct. 2551 (2015)(Johnson II).             In the wake of that

decision, the government conceded that Parsons no longer qualified

as a career offender and because the district court had not

expressly stated "that it would have imposed the same sentence

absent   the   career   offender   designation,"       Appellee's   Brief   in

Appeal No. 15-1539, p. 27, the government took the position that

the   sentence   should   be   vacated     and   the    case   remanded     for

resentencing.     In view of that concession, we vacated Parsons'

sentence and remanded.

           Upon remand to the same sentencing judge, the court

imposed a 54-month sentence, which represented an upward variance

of eight months from the non-career offender GSR of 37-46 months.

It was below the 66-month sentence requested by the government but

above the 30-month sentence requested by Parsons.                   The court

adopted the reasons it had articulated at the original sentencing,

but reduced the sentence on account of Parsons' positive post-

conviction conduct while in prison.        The court recognized that the

career offender guideline no longer applied, but emphasized that
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it had "not consider[ed] [Parsons] the first time around as a

career offender," Resentencing Transcript, p. 29, and that the

initial sentence "was driven by [its] consideration of the §

3553(a) factors, which . . . are largely the same here." Id., p.

30.   Parsons objected that the court had failed to sufficiently

explain its decision to upwardly vary from the non-career offender

GSR on remand, preserving that issue for appeal.

          This court "review[s] the reasonableness of a sentence

in a bifurcated fashion, first assessing claims of procedural

unreasonableness    before   turning     to   plaints    of   substantive

unreasonableness." United States v. Ubiles-Rosario, 867 F.3d 277,

290 (1st Cir. 2017).   "Generally speaking, [this court] 'review[s]

both procedural and substantive reasonableness under a deferential

abuse-of-discretion standard.'” Id.

                    I. Procedural Reasonableness

          Parsons   contends    that    his   sentence   is   procedurally

unreasonable for 1) failure of the court to "articulat[e] the

specific reasons for a sentence that was above the Guideline

Range," and 2) "because the District Court failed to divorce his

sentence from the prior erroneous career offender determination

and did not otherwise provide a rationale that differentiated Mr.

Parsons from similarly situated Criminal History Category III

defendants."   Appellant's     Brief,    p.   14.   He   maintains    that
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recidivism could not be relied upon to justify the upward variance

because it had already been accounted for in calculating the CHC.

Id.

             At    the   resentencing          hearing,      the   sentencing      court

adopted and incorporated its analysis of the § 3553(a) factors

from the original sentencing. See Resentencing Transcript, p. 28.

It    recognized    that    Parsons       no   longer     qualified    as   a     career

offender, but noted that it had not considered Parsons as a career

offender when initially sentencing him. Id. at 29.                    Therefore, the

§    3553   factors,     that    were    addressed      in   detail   at    the    first

sentencing, applied in essentially the same way upon resentencing.

See id., pp. 29-30.             The exception was post-conviction conduct,

for which the court reduced the 66-month sentence to 54 months.

There was no abuse of discretion by the sentencing court in

disavowing reliance upon the career offender GSR with respect to

the initial sentencing or in adopting its analysis of the § 3553(a)

factors from the original sentencing hearing.

             Nor did the district court abuse its discretion by

failing      to    differentiate         Parsons     from      similarly     situated

defendants in Criminal History Category (CHC) III. At the original

sentencing, the court expressed concern that CHC III understated

Parsons' criminal history.              Specifically, the court had noted the

nature and number of convictions reported in the presentence report
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(PSR) and the fact that Parsons had served no state prison time

for those convictions.    The court had also noted that Parsons had

committed the present offenses while on probation for a state court

offense, and that he had twice violated terms of pre-trial release

while awaiting trial on this case.

          Parsons   contends    that    the   court's    explanation   for

finding that the CHC III did not adequately account for Parsons'

criminal history was flawed on the ground that "recidivism could

not be relied upon to justify the upward variance because it had

already been accounted for in calculating the CHC." Appellant's

Brief, p. 14.     However, two of the factors specifically relied

upon by the sentencing court (the recurrence of criminal offenses

and the violations of pre-trial release) were not fully accounted

for in the criminal history score.          Because of the cap on one-

point convictions under U.S.S.G. § 4A1.1(c), some of Parsons' prior

convictions were not included in his total criminal history score.

And his repeated violations of the terms of pre-trial release were

not at all accounted for in his CHC.

          There   was    no   abuse    of   discretion   in   the   court's

explanation of its reasons for varying upwards from a GSR that was

based upon a CHC of III. See United States v. Del Valle-Rodriguez,

761 F.3d 171, 176 (1st Cir. 2014)(stating that "upward variance

may be justified by . . . a finding that the defendant's criminal
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history score underrepresents the gravity of his past conduct . .

. or by a finding that the GSR underestimates the likelihood of

recidivism"); United States v. Politano, 522 F.3d 69, 75 (1st Cir.

2008)(upholding six-month variance that relied upon finding that

defendant's "likelihood of recidivism was underestimated in the

Guidelines").

                     II. Substantive Reasonableness

           The substantive dimension of the reasonableness inquiry

"'focuses on the duration of the sentence in light of the totality

of   the   circumstances.'     It   acknowledges   that,    although     the

'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.' Our review demands only

'a plausible sentencing rationale and a defensible result'" United

States v. Nieves-Mercado, 847 F.3d 37, 42 (1st Cir. 2017).             "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.'" United States v. Bermudez-Melendez, 827 F.3d 160,

163 (1st Cir. 2016).

           Parsons    argues   that   his   sentence   is   substantively

unreasonable because "there is nothing about his circumstances

that justifies an upward variance." Appellant's Brief, p. 17. But,
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as discussed above, the court relied at re-sentencing upon the

factors on which it had relied at the original sentencing: "the

nature of the crimes, the recurrence, and what deterrent effect

those previous convictions and penalties have had or, frankly, not

had at this point." Sentencing Tr., p. 23. The sentencing court's

reliance    upon       those   factors    provides   a   "plausible   sentencing

rationale." See United States v. Flores-Machicote, 706 F.3d 16, 25

(1st Cir. 2013)(holding that "sentencing calculus centered on the

seriousness of the defendant's criminal conduct, the defendant's

past history and likelihood of recidivism, and the need for

deterrence .       . . constituted a plausible rationale").

            "Where, as here, the district court imposes a sentence

outside the GSR, a reviewing court must consider the extent of the

variance. But even a substantial variance does not translate, ipso

facto,     into    a    finding    that    the   sentence    is   substantively

unreasonable.          Everything depends on context." Id. (citations

omitted).     “'[T]here is not a single reasonable sentence but,

rather, a range of reasonable sentences,' and, '[c]onsequently,

reversal will result if — and only if — the sentencing court's

ultimate determination falls outside the expansive boundaries of

that universe.'" United States v. Castrillon-Sanchez, 861 F.3d 26,

30 (1st Cir.)(citations omitted), cert. denied, ___ S.Ct. ___,

2017 WL 3480393 (2017).
                                         - 8 -
            Here, the court imposed a sentence 8 months above the

applicable GSR of 37-46 months.        In the context of the court's

expressly articulated consideration of the § 3553(a) factors,

particularly the recurrence of Parsons' criminal offenses, his

failure to have been deterred, and concern about the need for the

sentence    to   provide    deterrence,     the     54-month     sentence    is

defensible. See Nieves-Mercado, 847 F.3d at 44 (holding that

"upward variance of 9 months on top of a 41-51 month range

constitutes a 'defensible result'").

            The court's determination that "this is a sentence that

is sufficient but not greater than necessary, to effect and reflect

all of the goals of sentencing under § 3553(a)," Resenting Tr., p.

32, is also entitled to some weight.        See Ubiles-Rosario, 867 F.3d

at 294.    Extraordinary circumstances were not necessary to justify

the above-guideline sentence. See United States v. Pagan-Walker,

___ F.3d ___, 2017 WL 3446130, at *2 (1st Cir. Aug. 11, 2017).

            Because   the   sentence      was     procedurally    sound     and

substantively reasonable, the judgment of the district court is

affirmed. See 1st Cir. R. 27.0(c).




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