          United States Court of Appeals
                     For the First Circuit


No. 14-1576

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                    JAVIER GUZMAN-FERNANDEZ,

                      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, Lipez, and Barron,
                        Circuit Judges.


     Mary Davis and Tisdale & Davis, P.A. on brief for appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Thomas F. Klumper, Assistant United States Attorney,
on brief for appellee.


                          June 1, 2016
                LIPEZ,     Circuit    Judge.         Javier     E.    Guzman-Fernandez

("Guzman") pled guilty to one count of conspiring to commit Hobbs

Act   robberies       in    violation    of     18     U.S.C.    §    1951(a).    After

calculating Guzman's guideline sentencing range ("GSR") to be 97

to 121 months, the district court imposed a 135-month term of

imprisonment. Guzman appeals his sentence, arguing that the upward

variance was both procedurally and substantively unreasonable.

Finding no errors, we affirm.

                                           I.

                In June 2010, Guzman, who was a supervisor at Kmart,

provided his co-conspirators with security information about one

of the Kmart stores, including the layout of the store and the

identity of the security guard.                   Relying on this information,

Guzman's co-conspirators robbed the store.                      The robbery involved

the use of a firearm, physical restraint of the store security

guard, and injury to the guard.

                In December 2010, Guzman provided security details about

another Kmart store to his co-conspirators and prepared a hiding

spot in the store for his co-defendant, who then hid in that spot

until     the     store    closed.       When     Guzman        and   other   employees

encountered the robber at the store the next morning,1 Guzman

pretended       to   be    both   a   victim    and     a   negotiator    between   the


      1It is not clear from the record why the robbery was still
in progress the following morning.


                                               - 2 -
employees and the robber.     The second robbery involved a firearm,

restraint of the store employees, and injury to the store watchman.

The value of all the property taken during the two robberies

exceeded $50,000.

             Guzman pled guilty to conspiracy to commit Hobbs Act

robberies.     See 18 U.S.C. § 1951(a).            His plea agreement and

presentence investigation report recommended a GSR of 97 to 121

months, based on a total offense level of 30 and a criminal history

category of I.       The offense level calculation included multiple

enhancements:    (1) a five-level increase applied because a firearm

was brandished, see U.S.S.G. § 2B3.1(b)(2)(C); (2) a two-level

increase applied because victims sustained bodily injury, see id.

§ 2B3.1(b)(3)(A); (3) a two-level increase applied because victims

were physically restrained, see id. § 2B3.1(b)(4)(B); (4) a two-

level increase applied because the loss exceeded $50,000, see id.

§ 2B3.1(b)(7)(C)2; and (5) a two-level increase applied because

Guzman "abused [his] position of public or private trust, . . . in

a   manner    that   significantly   facilitated        the   commission   or

concealment of the offense," id. § 3B1.3.                At the sentencing

hearing,     Guzman's   counsel   argued     for    a   97-month   term    of

imprisonment because "all the worst aspects of this case have been


     2This section was amended, effective November 1, 2015. Here,
we are relying on the guidelines that were in effect at the time
that the presentence investigation report was prepared and Guzman
was sentenced.


                                     - 3 -
included in the [GSR] calculation."           The government argued for a

120-month sentence.

           The district court rejected both proposed sentences and

imposed a 135-month term of imprisonment, a 14-month variance from

the top end of the GSR.       In explaining its decision, the court

considered the sentencing factors as set forth in 18 U.S.C.

§ 3553(a).     The court's observations included the following:

              Guzman's   age  and   personal   background
               suggested that he had "additional controls
               and additional insight as to what are the
               responsibilit[ies] of a mature individual";

              he was involved in two robberies;

              Guzman's insider role in the two robberies
               -- including providing information "used to
               intimidate and threaten employees" and
               playing both the "victim's role" and "the
               role of a negotiator" -- demonstrated the
               "boldness" of the conduct and its "planned"
               and "deliberate" nature; and

              the two robberies were serious crimes,
               involving restraint of the victims and
               injury to the store employees, and hence
               were different from the typical Hobbs Act
               robberies found in the "Federal case law."

The   district   court   determined   that     the   unique   facts   of   the

robberies and Guzman's personal circumstances "require[d]" the

variance in order "to promote respect for the law, . . . to deter

criminal conduct, and protect the public and hard working people

who [were] making basically minimum wage."           See id. § 3553(a)(2).

The court concluded, in short,         that a 14-month variance was



                                      - 4 -
warranted      to   "provide     just    punishment        with    what    happened."

Guzman's counsel "object[ed] to the variance and the Court's

application to the 3553 factors" because "all the worst aspects of

th[e] case ha[d] been included in the [GSR] calculation."

                                         II.

               The reasonableness of a          district court's sentencing

determinations has procedural and substantive dimensions.                        United

States    v.    Politano,   522   F.3d    69,    72       (1st   Cir.   2008).      The

procedural      inquiry   asks    whether      the    district     court    committed

errors "such as failing to calculate (or improperly calculating)

the   [GSR],     treating   the   Guidelines         as    mandatory,     failing   to

consider the 18 U.S.C. § 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."             United States v. Flores-Machicote,

706 F.3d 16, 20 (1st Cir. 2013) (alterations in original) (quoting

Gall v. United States, 552 U.S. 38, 51 (2007)).                     The substantive

inquiry "focuses on the duration of the sentence in light of the

totality of the circumstances."                 United States v. Del Valle-

Rodríguez, 761 F.3d 171, 176 (1st Cir. 2014).

               Guzman contends that his sentence was procedurally and

substantively unreasonable.3            We review both claims for abuse of



      We may consider Guzman's appeal because the district court
      3

did not sentence Guzman according to the parties' sentencing


                                          - 5 -
discretion.    Id. (citing Gall, 552 U.S. at 46).   Indeed, while the

government argues that a plain error standard should apply to

Guzman's procedural unreasonableness claim, we find that Guzman's

objection in the proceedings below -- that "all the worst aspects

of this case" have been accounted for in the Guidelines calculation

-- sufficed to place the district court on notice of the procedural

claim at issue.     Cf. United States v. Ríos-Hernández, 645 F.3d

456, 462 (1st Cir. 2011).     Hence, we review both reasonableness

claims under the abuse-of-discretion standard.      See Politano, 522

F.3d at 72.

A.   Procedural Error

           Guzman argues that the district court failed to explain

the reasons for the upward variance from the GSR, independent of

the factors that were already accounted for in the offense level

calculation.

           Our review indicates, however, that the district court

articulated at least one additional reason, beyond those accounted

for in the total offense level, in considering the § 3553(a)

factors.   The court discussed Guzman's mature age and personal

background, noting that he planned and carried out the dangerous

crimes despite his understanding of the nature and severity of his

conduct.   See United States v. Martin, 520 F.3d 87, 91 (1st Cir.



recommendation, and hence, as the government concedes, the waiver
of appeal provision in the plea agreement is not enforceable.


                                  - 6 -
2008) (explaining that sentencing decisions are "a unique study in

the human failings that sometimes mitigate, sometimes magnify, the

crime and the punishment to ensue" (quoting Gall, 552 U.S. at 52)).

            Where   the    district      court    relied    on    factors   already

accounted for in the total offense level, namely, Guzman's insider

role, the fact of two robberies, injury, and restraint, the court

justified its reliance with an explanation.                     We have previously

held that, "[w]hen a court varies from the GSR, its reasons for

doing so 'should typically be rooted either in the nature and

circumstances    of    the     offense    or     the   characteristics      of   the

offender.'"    Flores-Machicote, 706 F.3d at 21 (quoting Martin, 520

F.3d at 91).    When a factor within those § 3553(a) considerations

is already included in the total offense level that determines the

GSR, the court "must articulate 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); see also United

States v. Smith, 445 F.3d 1, 6-7 (1st Cir. 2006).

            Here, the district court distinguished Guzman's insider

participation from the typical "abuse[] . . . of . . . private

trust"   reflected        in   the    Guidelines.          U.S.S.G.     §   3B1.3.

Specifically,    the      court     explained     that,    in    addition   to   the

immediate     consequence      of    "facilitat[ing]        the     commission    or

concealment of the offense," id., Guzman's insider role spoke to


                                          - 7 -
the "boldness" of the conduct and its "planned" and "deliberate"

nature.   Similarly, while the fact that there were two robberies

may have been considered in calculating the total loss amount

(which then enhanced the total offense level applicable to Guzman),

see id. § 2B3.1(b)(7)(C), the court relied on the number of

robberies to emphasize the seriousness or nature of the conduct in

imposing an upward variance -- a consideration different in kind

from the combined harm or losses.    The court also explained how

the particular facts of the robberies reinforced the seriousness

of the injury and restraint, which collectively differentiated

this case from the typical "in and out" robberies to which the

Guidelines apply.4

          "[A] sentencing court's obligation to explain a variance

requires the court to offer a plausible and coherent rationale --

but it does not require the court to be precise to the point of

pedantry."   Del Valle-Rodríguez, 761 F.3d at 177.     We conclude




     4 In recognizing the fact-specific ways in which the district
court interpreted Guzman's insider position and the injury and
restraint, we note that we have applied a similarly discerning
approach to double-counting arguments in the context of upward
adjustments in the Guidelines calculation. There, we have held
that "[m]ultiple sentencing adjustments may derive from 'the same
nucleus of operative facts while nonetheless responding to
discrete concerns.'" United States v. Fiume, 708 F.3d 59, 61 (1st
Cir. 2013) (quoting United States v. Lilly, 13 F.3d 15, 19 (1st
Cir. 1994)). Indeed, "in the absence of an express prohibition,
this court routinely has permitted a single underlying fact to be
used more than once when that fact bears upon two separate
sentencing considerations." Id.


                                 - 8 -
that    the    district      court   did     not   abuse    its    discretion     in

articulating the reasons for an above-GSR sentence.

B. Substantive Error

              Guzman also contends that his sentence is substantively

unreasonable because the district court relied on factors already

considered in the Guidelines enhancements to impose a sentence

"well above" the GSR, even though his conduct was not so egregious

as to warrant any variance.                The substantive assessment of a

criminal sentence is characterized by "a frank recognition of the

substantial discretion vested in a sentencing court."                         Flores-

Machicote, 706 F.3d at 20.           Where, as here, a court has correctly

calculated the GSR, "sentencing becomes a judgment call, and a

variant sentence may be constructed based on a complex of factors

whose   interplay      and   precise   weight      cannot   even       be   precisely

described."         Martin, 520 F.3d at 92 (internal quotation marks

omitted).

              At the outset, the district court did not abuse its

discretion in relying on § 3553(a) factors that overlapped with

factors in the Guidelines considerations, given the wide latitude

afforded to courts in making sentencing determinations.                           See

generally Flores-Machicote, 706 F.3d at 20 ("[A] sentencing judge

may draw upon his familiarity with a case, weigh the factors

enumerated     in    [§   3553(a)],    and    custom-tailor       an    appropriate

sentence.") (citing Kimbrough v. United States, 552 U.S. 85, 91


                                           - 9 -
(2007)).   Additionally, the district court explained that it was

the combination of all the § 3553(a) factors discussed -- some

overlapping, others not -- that required a variant sentence to

provide "just punishment with what happened."

           We also add that a 14-month variance and a 135-month

term of imprisonment are not unreasonable in light of the totality

of the circumstances.   See Del Valle-Rodríguez, 761 F.3d at 176.

Consistent with the flexibility accorded to the sentencing court,

our substantive review has operated on a sliding scale, on which

the greater the variance, "the more compelling the sentencing

court's justification must be."     Id. at 176-77; see Smith, 445

F.3d at 4; Zapete-Garcia, 447 F.3d at 61.

           The variance in this case is modest.     The rare cases in

which variant sentences were found to be unreasonable involved

more extreme variances from the GSR.       See United States v. Ortiz-

Rodríguez, 789 F.3d 15, 18-20 (1st Cir. 2015) (holding that a

sentence "three times greater than the top of the advisory [GSR]"

is a "large variance" that required, but lacked, significant

justification); Smith, 445 F.3d at 6-7 (holding that a sentence

that is less than half of the bottom end of the GSR is unreasonably

low); Zapete-Garcia, 447 F.3d at 60-61 (finding a sentence that is

eight times the top end of the GSR to be unreasonable).            By

contrast, we have here a 14-month variance over the 121-month high

end of the GSR, which is proportionately smaller than many of the


                                  - 10 -
variances that we have affirmed as reasonable.           See, e.g., United

States v. Díaz-Arroyo,       797 F.3d 125, 127-30 (1st Cir. 2015)

(finding a 27-month variance from the 21-month high end of the GSR

to be reasonable); Del Valle-Rodríguez, 761 F.3d at 177 (holding

that a 15-month variance over the 105-month top end of the GSR is

modest and reasonable); Flores-Machicote, 706 F.3d at 20, 25

(finding a 19-month variance from the 41-month high end of the GSR

to be reasonable); Politano, 522 F.3d at 71-72, 75 (finding a 6-

month    variance   from   the   18-month   top   end   of   the   GSR   to   be

reasonable). The district court also justified the modest variance

with an adequate rationale, including the personal circumstances

of Guzman, the specific ways in which Guzman used his insider

position, and the overall seriousness of the offense.5

            Within "a universe of reasonable sentences," where there

is "not a single appropriate sentence," United States v. Oquendo-




     5 Guzman suggests that the district court's recognition that
departure from the GSR is not appropriate in this case means that
variance from the GSR was also not appropriate.      Departure and
variance, however, are two different concepts. See United States
v. Oquendo-Garcia, 783 F.3d 54, 56 (1st Cir. 2015) (noting that
departure "refers to specific deviations imposed in accordance
with a statute or a specific guidelines provision," whereas a
variance "exist[s] as a result of the advisory nature of the
guidelines").      Considerations    that   render   a   departure
inappropriate, such as the lack of prior notice as observed by the
district court here, do not necessarily render a variance
inappropriate.   See, e.g., Irizarry v. United States, 553 U.S.
708, 716 (2008) (holding that advance notice required in departure
under Rule 32(h) of the Federal Rules of Criminal Procedure is not
required in variance).


                                      - 11 -
Garcia, 783 F.3d 54, 57 (1st Cir. 2015) (quoting United States v.

Rivera-González, 776 F.3d 45, 52 (1st Cir. 2015)), the factors

relied on by the court "add[ed] up to a plausible rationale" for

the modest variance imposed in this case, Martin, 520 F.3d at 91.

         Affirmed.




                               - 12 -
